Damages - Psychiatric injury - Historical institutional child sexual abuse... [2020] WADC 27 | Case summary

Some definitions of 'child sexual abuse' 34

Damages - Psychiatric injury - Historical institutional child sexual abuse... [2020] WADC 27 | Case summary | Zoe

[125]

Therefore, by its amended defence the Christian Brothers essentially admit the pleaded allegations regarding the nature of the sexual abuse perpetrated by Brother Murphy upon Mr Lawrence. The Christian Brothers admit Brother Murphy raped Mr Lawrence about six times at Castledare. Although the Christian Brothers admit that Brother Murphy regularly took Mr Lawrence into Murphy's room and fondled and rubbed Mr Lawrence's penis and anus, they do not admit that Brother Murphy repeatedly inserted his finger into Mr Lawrence's anus before anally raping him. Nor do the Christian Brothers admit the sexual abuse occurred from about 1953 or 1954 until 1957, or that it included many instances of anal rape.
The Christian Brothers, while not admitting Brother Marques sexually abused Mr Lawrence for several years at Clontarf between 1955 and 1960, admit that on many occasions Brother Marques fondled and rubbed Mr Lawrence's penis and anus in various locations. They also admit a working boy, Blackmore, sexually abused Mr Lawrence once about three weeks after Mr Lawrence had arrived at Clontarf. The Christian Brothers admit Brother Angus sexually abused Mr Lawrence over several years at Clontarf between 1955 and 1960, but do not admit the nature and frequency of the abuse. The sexual abuse perpetrated by the school teacher, Mr Jackson, on two occasions is admitted.
The Christian Brothers do not admit an incident involving Brother Foley in the gym when he directed Mr Lawrence to lift weights while naked occurred, but say that if that incident did occur it is not child sexual abuse.
Further, the Christian Brothers do not admit Brother Doyle caned Mr Lawrence on his bare bottom while rubbing his hand on Mr Lawrence's bottom and further say that if that activity did occur, it does not constitute child sexual abuse.
The Christian Brothers also admit they had responsibility for, and were the custodian of the boys at the orphanages, and were required to comply with the provisions of the Child Welfare Act 1947 (WA) (CWA) and the Child Welfare Regulations 1934 (WA) (CWR). It is admitted the Brothers were subject to direction, control and supervision of the Christian Brothers.[4]
The Christian Brothers admit Mr Lawrence was placed in their custody at Clontarf from approximately 1953 until 1954, and then from 1955 to 1960, and at Castledare in 1954 to 1955, and that during those periods, Mr Lawrence's supervision was entrusted to the Brothers.[5]
The Christian Brothers also admit that as at January 1957, they had, over a period of approximately 38 years, received reports from time to time relating to allegations of sexual abuse directed against Brothers who were members of the Christian Brothers at both Clontarf and Castledare and also at other institutions in Australia operated by the Christian Brothers. It is further admitted that the relevant office holder of the Christian Brothers ought to have known at the time Mr Lawrence was a resident at Clontarf and Castledare there was a reasonably foreseeable risk of sexual abuse being committed against boys who were resident at Clontarf and Castledare.[6]
The Christian Brothers further admit that during the period Mr Lawrence was resident at Clontarf and Castledare:[7]

[150]

It is helpful to briefly outline the statutory background as to how Mr Lawrence, a child born in England, came to be in the care of the Christian Brothers in Western Australia.[13]
Prior to 1946, there was no Commonwealth legislation governing the migration, settlement or guardianship of child migrants.[14]
On 15 August 1946, the Commonwealth government assented to the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOCA).
The IGOCA was to make provision for and in connection with the guardianship of certain children from outside Australia. Mr Lawrence fell within the definition of these children.[15]
The IGOCA permitted the Minister of Immigration (Minister) to delegate to any State all or any of his powers and functions under the IGOCA.[16] At the same time the Minister was the guardian of every immigrant child.[17]
The Minister was permitted to place an immigrant child in the custody of a person who was willing to be the custodian of the child and was in the opinion of the Minister a suitable person to be the custodian of the child.[18]
The Immigration (Guardianship of Children) Regulations under the IGOCR provided that:
1. The authority of the State, shall have, in relation to any immigrant child in respect of whom the Minister has delegated his powers and functions under s 6 of the IGOCA, the rights and powers exercisable by him in relation to a child who, in pursuance of the child welfare laws of the State, is committed to the custody and care of any person or authority.[19]
2. The duties and obligations of a custodian in relation to an immigrant child shall be the like kind to those of a person in relation to a child was committed to the custodian's care, or for or of whom he becomes a guardian, in pursuance of the child welfare laws of the State in which the custodian is resident.[20]
3. A person in whose care an immigrant child has been placed by the custodian of the child shall afford to the authority of the State in which he resides, all reasonable facilities for inspecting the conditions under which the child is living and for ascertaining whether the duties and obligations of the custodian are being fulfilled.[21]
The statutory scheme established by the IGOCA envisaged that the State authority would be primarily responsible for the supervision of the welfare and care of child migrants. Accordingly, the Minister received into his guardianship every child migrant who arrived in Australia unaccompanied by a parent. Shortly after the IGOCA was enacted the Minister delegated his powers and functions as guardian of child migrants to State welfare authorities, which in WA was the Director of the Child Welfare Department (CWD). The officer so designated was responsible for seeing that the arrangements made for a child's accommodation and for his placing in employment, and subsequent welfare up to age twenty one were satisfactory.[22]
The CWA was assented to on 10 January 1948.
The object of the CWA was to make better provision for the protection, control, maintenance and reformation of neglected and destitute children and for other purposes connected therewith.[23]
'Ward' included a child who under the provisions of the CWA was received into an institution.[24] Mr Lawrence fell within this definition.
It is perhaps with a sense of foreboding, knowing how Mr Lawrence and other children would be later treated by the Christian Brothers, that a child is referred to as an 'inmate' which is defined as meaning 'a ward maintained in an institution'.[25]
'Institution' includes 'all orphanages'.[26] 'Orphanage' means 'an institution for the detention maintenance, training, education and employment of destitute or neglected children ...'.[27]
By s 15 of the CWA the orphanages specified in the second schedule were declared to be subsidised institutions for the purposes of the Act. By sch 2 under the heading 'Roman Catholic' both Clontarf and Castledare are specified. 'Subsidised institution' meant an institution maintained wholly or partially by contributions from the Consolidated Revenue Fund.[28] Clontarf and Castledare were subsidised institutions within the meaning and for the purpose of the CWA.[29]
The CWR made under the Act provided that the manager of a subsidised institution shall be responsible for the custody of all children admitted therein and shall see that all officers carry out their duties in a proper manner.[30] The holder of the office of authority in Castledare and Clontarf for whom liability is held by the Christian Brothers[31] (relevant office holder) was a manager of Castledare and Clontarf within the meaning of CWR reg 7.
Indentures were made between the CWD and voluntary organisations such as the relevant office holder, amongst others. In the indentures, the relevant office holder agreed to bear the responsibility for the care and welfare of the children placed under his care.[32]
The CWR set the standard for Mr Lawrence's care and welfare. 'Inmates' were to be supplied with ample plain, wholesome food.[33] Each child over the age of 6 years was to be supplied with a china cup, plate etc, together with necessary knife, fork, spoon etc, a separate towel, hairbrush and toothbrush.[34]
By reg 32:

[152]

Counsel for the Christian Brothers submits:[35]
1. The CWR set the scene for [Mr Lawrence]. The CWD had responsibility for the supervision of the welfare and care of [Mr Lawrence] including accommodation, placing in employment, and subsequent welfare up to age twenty one. Corporal punishment was the norm. The Education Department had a statutory responsibility to test [Mr Lawrence]. The CWD had a statutory obligation to inspect Castledare and Clontarf at least once in every six months. The CWD controlled [Mr Lawrence]'s communications with the outside world and when he could leave Castledare and Clontarf on holidays, weekends, or other days with friends or relatives. No one questioned the standard of care or accommodation or education provided to [Mr Lawrence]. The inference is that this was the standard expected and provided for, for children like [Mr Lawrence].
2. The child migration scheme is now universally recognised as having been fundamentally flawed with tragic consequences. The evidence received by the Senate Committee overwhelmingly emphasised the dark, negative side of child migration - the brutality of life in some institutions where abuse and assault, both physical and sexual, was a daily occurrence and where hardship, hard work and indifferent care was the norm. Living such negative experiences led some child migrants into a life of family and relationship breakdown and domestic violence, of crime and violence, and of substance abuse.[36]
3. The policy of child migration cannot be seen other than in the context of its time and with regard to the practices of the time, especially the emphasis placed on the institutional care of children, which judged by today's standards is an outmoded practice, and detrimental, in many cases, to the welfare of children in care. The removal of children from the UK and subsequent treatment they endured in Australian institutions contributed to the harsh outcomes for the children in care.[37]
I accept the submissions reflects what is expressed in the Lost Innocents Report.

[177]

Both Mr Lawrence and the Christian Brothers have been confronted by difficulties in preparing for and presenting their respective cases because of the long period of time which has elapsed since the sexual abuse occurred, even though the Christian Brothers have admitted most of the sexual abuse about which Mr Lawrence gave evidence. Due to the long passage of time the parties have to some extent been put at a disadvantage, particularly the Christian Brothers, who are now no longer able to interview and call potential witnesses because they have died. Because of that long delay the evidence of Mr Lawrence, AB and CD cannot be adequately tested. By reason of the delay the Christian Brothers have lost the opportunity to perhaps bring forward matters of defence and to adequately test the evidence of the witnesses.
It is not possible to locate any of the people who were present at the time who might be able to give evidence, even if they are still alive. It is now not possible to identify who else might have been present or nearby when the incidents are said to have occurred.
While the Christian Brothers have been able to locate historical documentation and records, other documentation which may have been of assistance has not been located or recovered.
Human memory is fallible. Honest witnesses can be wrong in their recollection. It is a matter of common experience that the longer you believe something to have happened, the more convinced you are that it has happened. This can be so even if you are mistaken in your recollection. The longer the delay the more opportunity there is for error and that is especially so for events occurring in childhood, particularly early childhood.
Neither party has been able locate records relevant to Mr Lawrence's employment and earnings history. There are no income tax documents which would normally be produced and tendered into evidence in a case such as this. Although Mr Lawrence gave evidence that he suffered from poor mental health in the 1960s and early 1970s and was diagnosed with depression and prescribed antidepressant medication there are no medical records which confirm that evidence. The earliest medical records commence in 1975 when Mr Lawrence was admitted to Heathcote Hospital.[41]
The passage of time is a factor in people's recollection of events, and memory and recollection often dims with the passage of time. A long passage of time between the events about which Mr Lawrence spoke and this matter coming to court for hearing raises a question about the reliability and accuracy of Mr Lawrence's recollection and whether I can safely rely and act upon it. I accept that, to an extent, the Christian Brothers have lost the means of testing certain aspects of Mr Lawrence's evidence.
An example of the difficulty the long period of time which has elapsed has on people's memories is in relation to the evidence of AB who, when he was interviewed by the assessors, was uncertain whether it was Brother Murray or Brother Marques who anally raped him.[42]
I have had regard to these matters when assessing the evidence and making findings.

[222]

In considering whether the father's touching of a child's bottom constituted sexual abuse, the County Court judge found that she had to assess the motivation of the father in order to decide whether his conduct was sexual abuse.[62] Ginnane J found:[63]
1. In my opinion, for the purposes of consideration of the facts that the Judge found, the term 'sexual abuse' is s 162(1)(d) means conduct engaged in towards another person of a sexual nature without their consent, including touching a private part of their body, when the touching is not accidental and has no legitimate purpose such as a medical purpose.
2. The Judge did have to be satisfied on the balance of probabilities, taking into account the gravity of the allegation, that EF had suffered or that both children were likely to suffer significant harm as a result of sexual abuse. If the evidence had raised a possible innocent explanation for the touching, the context and any evidence of the purpose of the touching would have been relevant, for instance to exclude accidental conduct or touching for some legitimate purpose. But that was not this case on the facts that the Judge found. Therefore, I do not consider that the father's motivation had to be identified, as there was no evidence suggesting he had touched the child accidentally or for a legitimate purpose.
3. In my respectful opinion, the Judge by stating that the intention and motivation of the father's touching were relevant adopted an incorrect interpretation of the term 'sexual abuse' in s 162(1)(d). There was no requirement that the evidence established that the father had a motivation or intention to sexually abuse. Moreover, the father's conduct did not fall outside the term 'sexual abuse' because his touching of EF was more likely to reflect his desire to exercise power and control, and a failure on his part to recognise that EF was uncomfortable with the conduct. A desire to exercise power and control can be part of sexual abuse.
Ginnane J's ruling must of course be considered in the context of the facts of that case where at first instance the judge found that the circumstances in which the father touched the child's bottom was uncertain and because there was no proof of a sexual context to the father's conduct, other than the touching, to determine whether that conduct constituted 'sexual abuse' required assessment of the father's motivation before a positive finding of sexual abuse could be made.[64] Ginnane J found it was unnecessary to consider the father's motivation because the touching of a child's bottom without its consent, when the touching was not accidental and had no legitimate purpose, was 'sexual abuse' for the purpose of the statute.
Therefore, that case may place some qualification on the definition proposed by Mr Mathews in that for the act to be sexual, it did not need to be done for the purposes of seeking or obtaining physical or mental sexual gratification. In the circumstances of Mr Lawrence's case I do not need to resolve that issue.
As I have earlier explained, most of the pleaded allegations of sexual abuse are admitted by the Christian Brothers. Essentially the only allegations which the Christian Brothers do not admit were sexual abuse are in relation to the incidents involving Brothers Foyle and Doyle. When, later in these reasons, I come to consider whether either of those incidents constitute 'sexual abuse' within the meaning of that term in s 6A of the Limitation Act and s 15A of the CLA, I do so on a reasonably narrow basis. Accordingly, in making my findings it was unnecessary for me to have regard to the following observations which I am about to make. Therefore, the following observations are obiter observations. The observations are made, in part, because of the way in which the Christian Brothers have pleaded and ran their defence against Mr Lawrence's claim for damages, by saying that, besides sexually abusing Mr Lawrence, they also physically abused him and maltreated him in a variety of ways, which has caused injury and damage to Mr Lawrence, which are not compensable, and therefore it is submitted reduces his entitlement to damages.
In part, I also make the observations because of an exchange in the Parliamentary debates about the amending Bill which seems to me to be prescient in relation to the issues which arise in the facts of this case, when Ms M J Davies, the leader of the National Party, said:

[230]

If an institution creates, or allows an atmosphere or environment to be created, in which a child's vulnerability, simply by reason of his or her young age, is exploited for the purposes of sexual gratification by those people who have power over the child by virtue of their association with the institution, then that conduct (of creating or allowing an atmosphere to develop by which a child's vulnerability is exploited for the purposes of sexual gratification) may, in my view, fall within the meaning of the word 'abuse'. That is so even if the conduct seen in isolation would not normally be regarded as for the purposes of or involving sexual gratification or stimulation. All conduct or acts, which in themselves might not be regarded as sexual, but which enable sexual abuse to occur, would be considered as falling within the meaning of the term 'sexual abuse' for the purpose of the legislation. That is so whether or not that other conduct or those other acts are intended to enable the sexual abuse to occur.
If the conduct heightens or increases the child's vulnerability to being exploited by being sexually abused, that conduct may fall within the definition of the term 'sexual abuse'. If the conduct is intended to lead to sexual abuse, such as grooming behaviour over a period of time, such conduct which seen in isolation might not be regarded as sexual abuse, might be considered to be sexual abuse. However, even if the behaviour is not intended to lead to a child's vulnerability being exploited for the purposes of sexual gratification of the abuser, if it does actually heighten or increases the child's vulnerability which allows the sexual abuse to occur, that may also be considered, in my view, to be sexual abuse.
Therefore, if in the context of an institution, or indeed any relationship where an adult has power over a child, any conduct which heightens the child's vulnerability and allows him or her to be exploited for purposes of sexual gratification may be considered to be sexual abuse. If, in an institutional setting, a child is regularly physically beaten and threatened which causes a child to be fearful, frightened and defenceless, or unable to turn to anyone for help, thereby heightening or increasing the child's vulnerability to do what the child is directed or forced to do, that conduct may fall within the meaning of the expression 'sexual abuse'. If the child's resistance to sexual abuse, or sexual overtures, is lowered or reduced because of feelings of fear, helplessness and defencelessness, the conduct, the physical abuse, may come within the meaning of the term 'sexual abuse'. That is so even if the person administering the physical abuse is not the sexual abuser, providing the physical abuse aides or assists, whether intentionally or otherwise, the sexual abuse to occur. If a child is physically beaten because of reporting sexual abuse, that conduct makes the child more vulnerable to being sexually abused by adding to the child's feelings of fear, helplessness and defencelessness. It is likely to reduce a child's resistance against being sexually abused. Even if the child itself is not physically abused for reporting sexual abuse, if the child is aware of others being physically punished for reporting sexual abuse, that knowledge increases the child's feelings of helplessness and fear and increases his or her vulnerability to being sexually abused.
Therefore, if an atmosphere or environment has been allowed to develop by which children feel they cannot report sexual abuse because of the threat or fear of being physically abused, the physical abuse may fall within the meaning of the term sexual abuse. That term must be given an expansive meaning to cover any other forms of abuse which surround and allow the sexual abuse to occur. However, for this other conduct, specifically physical abuse, to fall within the meaning of the term sexual abuse there must be some connection to or association with the conduct which is sexual, that is, for the purposes of sexual gratification of the abuser. If the physical abuse is not connected to or associated with conduct for sexual gratification, the physical abuse does not fall within the meaning of the term sexual abuse.

[231]

Mr Lawrence gave evidence over nearly two days. He gave evidence about matters occurring when, as a child, he was a resident at St Vincent's Orphanage Clontarf (Clontarf) and Castledare Junior Orphanage (Castledare) from 1952 until 1960. Understandably, given the length of time which has passed, he had difficulty remembering precise details or dates. However, he had a clear memory of various incidents when he was sexually abused and maltreated by various Christian Brothers and other persons at Clontarf and Castledare who had authority over him and who were responsible for his care. Most of the incidents of sexual and related abuse to which Mr Lawrence was subjected and about which he gave evidence was either formally admitted by the Christian Brothers or was not contested or disputed. Generally, the cross-examination of Mr Lawrence focused on other aspects and circumstances of Mr Lawrence's life, including various injuries and medical conditions from which Mr Lawrence has suffered and which, the Christian Brothers submit, are relevant in relation to the assessment of damages to be awarded to Mr Lawrence for psychiatric injury as a result of the sexual abuse he suffered at the hands of the Christian Brothers. There is therefore no significant challenge to Mr Lawrence's credibility.
I accept Mr Lawrence was a credible and honest witness who did his best to remember what has occurred over the course of his life and in particular when he was a resident at Clontarf and Castledare. However, there are some aspects of his evidence which are unreliable, such as his memory of when and for whom he worked and over what period of time he worked. No criticism is made of Mr Lawrence because his memory was at times unreliable in certain respects. There are references in the more recent medical records, to which I will refer later, to memory loss and signs of dementia. It is understandable, given both the passage of time and also the nature of the injuries suffered by Mr Lawrence, that he is unable to be certain, or is unable to recall, certain aspects or events in his life.
Although at times Mr Lawrence became distressed, especially when giving evidence about his early childhood in England and how his mother treated him, he generally gave evidence in a measured and careful way. He listened carefully to the questions, both in evidence-in-chief and in cross-examination, and was polite to counsel. However, besides understandable difficulties he had about remembering certain matters in his life given the long passage of time which has elapsed, he also had difficulty in properly articulating or expressing the circumstances in which he was sexually abused and the impact the abuse has had on his life and ability to function. At one stage, when asked to explain what he meant when he said he had a breakdown and how it affected him, he said he was not a very intelligent man and it was hard for him to explain things.[68]
Dr Shub described Mr Lawrence as presenting a stoical façade and under-reporting his symptoms, which was a defence against the symptoms and the psychiatric injury suffered by Mr Lawrence which Dr Shub diagnosed, in part, as Post-Traumatic Stress Disorder (PTSD).[69]
Dr Shub, noting that from the medical records it was noted on multiple occasions, and also by Dr Piirto when she reviewed Mr Lawrence, that he appears to be superficial, explained:[70]

[236]

Mr Lawrence was born on 23 June 1944 and is currently aged 75 years.[78] He was born in Birmingham in the United Kingdom (UK) and until the age of 8 grew up in Birmingham.[79] Mr Lawrence is the youngest of five children and has two half-brothers and two half-sisters.[80]
I was confused by Mr Lawrence's evidence about his early childhood in Birmingham and what he actually remembered about that period. The evidence about Mr Lawrence's life in Birmingham was elicited in cross-examination. Initially he said that at the age of 18 months he was taken and left by his mother at an orphanage in Birmingham because his mother did not want him. It was an orphanage run by nuns.[81] He never saw his mother again, nor did he receive any visits from family members.[82] Later, at the age of 6, he was placed into another orphanage in Birmingham.[83] Mr Lawrence said he has no independent recollection of that period and his knowledge was based upon what he was later told by the nuns.[84] He was told that his mother met an American GI and fell pregnant with him when she already had four children.[85]
Initially, Mr Lawrence said he had no memory of his mother.[86]
Under further cross-examination, Mr Lawrence said he could not remember what the nuns told him his mother did to him because it was such a long time ago.[87] He also said he could not recall telling doctors that he visited his mother and stepfather about once every six weeks.[88] When he was then asked about talking to Dr Piirto about his childhood in Birmingham, Mr Lawrence said that he remembered an incident when his mother held him upside down by his feet and let him go so his head hit the concrete floor. He also said his mother was cruel towards him. She was struggling to care for five children and took it out on him.[89] He said it was painful to recall that period and said that he has never forgiven his mother for what she did to him.[90] On an occasion when he returned to England and met his brothers and sisters, they tried to force him into his mother's house to meet her, but he refused to.[91]
Mr Lawrence also said that when he was aged about 3 he remembered sleeping at the end of a bed in which his mother and her partner were sleeping, but was forced out of the bed and made to sleep in the corner of the room because he had wet the bed.[92] He felt his mother was kinder to her other children then she was to him and had little to do with him and ignored him.[93]
He then agreed that he was aged 6 when he was put into an orphanage.[94] He could not recall returning home every four or five weeks to see his mother.[95] He did not know how old he was when he last saw his mother and described remembering her only vaguely.[96]
As I have earlier observed, the evidence was confusing. It was contradictory. Mr Lawrence was clearly reluctant to talk about what he remembered of his early childhood years in Birmingham. To some extent he was distressed when talking about that time and said it was painful for him to recall that period. It is unclear whether Mr Lawrence actually has a memory of that period or whether he is simply repeating what he recalls being told by the nuns at the orphanage he was living in when he was deported to Australia. I do not accept he could have remembered an incident when he was aged 18 months and was dropped on his head. In my view his evidence about such an incident is more likely to be based upon what he was later told by the nuns.
I am also doubtful that he can remember how he was treated by his mother when he was aged 3. However, I accept that Mr Lawrence does have an actual memory of being badly treated by his mother and being forced to sleep in the corner of a room because he had wet the bed, and also of his mother being kinder to her other children than to him. However, his memory was more likely to be related to a period when he was older than the 3, perhaps aged 5 or 6.
Although there are no records to confirm when Mr Lawrence was placed in an orphanage, I am satisfied he was probably in the orphanage in Birmingham for a number of years before he travelled to Australia. During that time, he probably did visit his mother from time to time.
Whether Mr Lawrence does have an actual memory of his time in Birmingham and how he was treated by his mother, or whether his belief that he was badly treated by his mother is based upon what he was told by the nuns, I accept he has been, and remains, angry, upset and distressed by that period in his life. I accept that to some extent he was maltreated and neglected by his mother. Self-evidently by his admission into an orphanage in Birmingham at a young age, probably when he was aged about 6, his mother, who had four other children, abandoned him. There is a reference in the medical records as early as 4 August 1976 when Mr Lawrence was admitted to Royal Perth Hospital (RPH) of 'unsatisfactory relationships with foster parents' and emotional deprivation when he was orphaned when young in England, which I accept shows Mr Lawrence had strong feelings about how he had been treated by his mother in Birmingham and placed into an orphanage at a very young age.
Although, Mr Lawrence agreed in cross-examination that when he was living in the orphanage in Birmingham, when he was aged 8, he was abused by a priest,[97] I think Mr Lawrence is probably confused about that. His answer was in response to a question that he was abused at the age of 6 by a priest which was based on a note in the hospital records (which was not identified but is presumably a reference to the RPH report when Mr Lawrence was admitted to hospital on 4 August 1976 following a drug overdose).[98] In that report, Mr Lawrence was reported as saying he came to Clontarf aged 6. He committed homosexuality and was seduced at the age of 6 by a priest at the orphanage. Obviously Mr Lawrence was confused as to his age when he came to Clontarf. However, clearly his report to the doctor is a reference to being abused at Clontarf. Most likely it is a reference to being abused by Brother Murphy.
It is not a part of the Christian Brothers' case that Mr Lawrence was sexually abused at the orphanage in Birmingham.[99]
At the age of 8, while he was living at the orphanage in Birmingham, he was asked by a woman whether he wanted to go to Australia. He did not know what Australia was. He was told that in Australia lollies grow on trees, the sun shines all the time, and he could ride donkeys to school. He thought that sounded good and agreed to go to Australia.[100]

[239]

When he and the other boys arrived at Clontarf they were placed in a circle before the Superior Brother Doyle. A lot of the boys were crying but Mr Lawrence was not. Brother Doyle slapped Mr Lawrence over the face and told him to cry with the other boys.[111] From that point onwards he was frightened of Brother Doyle who he described as 'a brutal man'.[112]
When Mr Lawrence and the other children arrived at Clontarf they were dressed in uniforms provided to them in the UK. At Clontarf they were ordered to take off their uniforms, which were burnt, and then dressed in khaki shorts and a shirt with no shoes or other footwear.[113] He remained dressed in the same way until he was aged 16 when he left Clontarf, whether it was summer or winter.[114]
Particularly in the early days, Mr Lawrence was scared and homesick. He felt lost and lonely. He did not know to whom to turn. He felt physically unwell.[115]
Each of the boys were allocated numbers. They were called by the number allocated to them rather than by their names. Mr Lawrence's number was 114.[116] The number 114 allocated to Mr Lawrence remained his number throughout the time he was at Clontarf and Castledare.[117]
He recalled an occasion shortly after he arrived at Clontarf when his number was called out over the loud speaker by Brother Doyle telling him to report to the office. Brother Doyle gave him a present which had been sent from his family together with a letter. The letter was not given to Mr Lawrence. Mr Lawrence later opened the parcel and shared the contents with the other boys. About four weeks later another parcel was received at Clontarf but rather than give the present to Mr Lawrence, Brother Doyle opened it and distributed the contents to the other boys without giving anything to Mr Lawrence. That was the last time Mr Lawrence received a parcel.[118]
Mr Lawrence was upset and cried when Brother Doyle refused to give him the second package.[119]
When further parcels were not received, Mr Lawrence asked Brother Doyle why he was not getting any of the parcels and he was informed that his family had been 'blown up'.[120]
Birthdays were not celebrated. Mr Lawrence became unaware of when his birthday was.[121]

[240]

Mr Lawrence first met Brother Murphy shortly after he arrived at Castledare.[122] Brother Murphy was his teacher while he was at Castledare.[123]
Mr Lawrence was first raped by Brother Murphy about two or three weeks after he arrived at Castledare.[124] He and the other boys were singing in a choir in a hall when Brother Murphy picked up Mr Lawrence in his arms and rocked him like a baby, saying to the other boys 'isn't he cute'. He then put Mr Lawrence back down, telling him to behave himself. Later that night Mr Lawrence wet his bed. He got out of bed and took off his pyjamas. As he was standing naked near his bed, uncertain what to do, he saw Brother Murphy standing about two or three metres away, near a door leading to a passageway.[125] Brother Murphy called him over, took him by the hand, and led him up the passageway to Brother Murphy's room. Brother Murphy closed the door behind them, laid Mr Lawrence on his back and got on top of Mr Lawrence, rubbing his hips against Mr Lawrence. Brother Murphy then rolled Mr Lawrence over onto his stomach, undid his gown and his pants, rubbed cream which smelled like Brylcreem onto his anus and then penetrated his anus.[126] Initially, Brother Murphy penetrated Mr Lawrence's anus with his fingers when rubbing the cream into his anus and then inserted his erect penis into Mr Lawrence's anus until he ejaculated.[127]
I accept the incident, which Mr Lawrence estimated to take above five or six minutes, went on for quite a while. Mr Lawrence was crying while he was being raped. Brother Murphy told him to be quiet otherwise he would get 'the strap'. He could hear Brother Murphy breathing. He stank. Mr Lawrence was aged 9 at the time.[128] Mr Lawrence later went to the toilet and felt sperm coming out of his anus.[129]
The next day Mr Lawrence noticed he had blood on his underpants and his shorts and he was bleeding from his anus. He only noticed he was bleeding after another boy pointed out to him that he had blood on his pants. He then went to the toilet and saw the extent of the bleeding from his anus. He was embarrassed. He put on two or three pairs of underpants and then put his shorts back on.[130]
Mr Lawrence described the incident as shocking. He felt depressed afterwards and was missing his mother. He felt he had no one to turn to.[131]
Mr Lawrence estimated he was anally raped by Brother Murphy about seven or eight times during the 12 months he was at Castledare.[132]
Brother Murphy also sexually abused Mr Lawrence at Castledare by massaging his bottom and while Mr Lawrence was naked, rubbing his back and his legs while Brother Murphy became aroused.[133] Brother Murphy fondled him so often he was unable to remember how often.[134]
At Castledare Brother Murphy was not only Mr Lawrence's teacher but was also in charge of Mr Lawrence and the other children. As a consequence, the boys were more or less in contact with Brother Murphy all of the time. He was constantly in the presence of the boys when they were at school, when they were having their meals and when they were showering.[135]

[241]

When he was transferred back to Clontarf, Mr Lawrence was aged 10.[136] He had no further contact with Brother Murphy for about the first six months until Brother Murphy was transferred to Clontarf. Brother Murphy remained at Clontarf for about 12 months.
When Mr Lawrence first saw Brother Murphy at Clontarf he felt very nervous, scared, and fearful that he was going to again be abused by Brother Murphy.[137] His fear was well-founded and entirely understandable given what had happened at Castledare and what later happened at Clontarf. Brother Murphy was put in charge of a bedroom in which Mr Lawrence slept.[138] Brother Murphy slept in a room at the end of the bedroom. Brother Murphy could often be heard during the night walking from his room into the bedroom where the boys were sleeping, causing them to hide beneath their blankets.[139] During the night, Brother Murphy took Mr Lawrence from his bed into Brother Murphy's bedroom and offended against Mr Lawrence in the same way he had offended against him at Castledare. He stripped Mr Lawrence and massaged his naked body. He took his own pants down and rubbed his penis on Mr Lawrence's stomach. Once Brother Murphy became aroused he rolled Mr Lawrence onto his stomach, rubbed cream into his anus, penetrating Mr Lawrence's anus with his fingers, and then penetrated Mr Lawrence's anus with his erect penis for about 10 to 20 seconds until he ejaculated.[140] He could feel Brother Murphy's erect penis going into his anus.[141] Each time after Brother Murphy ejaculated into his anus Mr Lawrence had to go to the toilet.[142] After Brother Murphy had finished, he pushed Mr Lawrence out of his room and told Mr Lawrence to go to bed, taking his pyjamas with him.[143]
Mr Lawrence returned to his bed crying. There was nothing he could do. There was nowhere he could go. He was frightened that if he did anything, he would get into trouble and get a hiding with a strap.[144]
Mr Lawrence described that on a few of the occasions when he was anally raped by Brother Murphy he could not help crying which is when Brother Murphy threatened to beat him with the strap if he did not 'shut up'.[145] Mr Lawrence described Brother Murphy as a 'terrible man'.[146]
Although Mr Lawrence did not suffer bleeding from the anus each time he was sexually penetrated by Brother Murphy, he regularly suffered anal bleeding which after a period of time would stop but then after several weeks would return, such that it gradually became worse.[147]
Mr Lawrence estimated Brother Murphy anally raped him about eight times at Clontarf over a period of 12 months before Brother Murphy was transferred to South Australia.[148]
Because Brother Murphy was his teacher at Clontarf, Mr Lawrence was in Brother Murphy's presence throughout each day of the school week, Monday to Friday.[149]
As a result of what Brother Murphy did to him, Mr Lawrence felt inferior and worthless. He could not learn anything from Brother Murphy. He could not do anything. In the classroom he was not able to concentrate on what Brother Murphy was teaching or look at Brother Murphy. Instead he used to look out of the window.[150]
A photograph[151] shows Brother Murphy standing over Mr Lawrence and other boys in a dormitory at Castledare teaching them how to make a bed. Mr Lawrence is the third boy from the back wall. Brother Murphy's bedroom was along the passageway through the left doorway towards the back of the photograph.[152]
Brother Murphy also offended against Mr Lawrence in the sports room at Clontarf.[153] When no one else was present, Brother Murphy pulled Mr Lawrence's pants down and fondled his genitalia, bottom and legs, causing Mr Lawrence to have an erection while Brother Murphy also became aroused. Mr Lawrence estimated that type of activity occurred about five times over the 12 month period at Clontarf.[154] Although Mr Lawrence said he was aged 9 during the period he was abused in the sports room, he must have been at least 10 if the offending occurred at Clontarf when Mr Lawrence returned to Clontarf after he had spent 12 months at Castledare when he was aged 9.[155] This is an example of Mr Lawrence's sometimes unreliable memory but it does not adversely impact upon his credibility and I make no adverse finding against him because of his at times unreliable memory.
Mr Lawrence felt very depressed and anxious during those incidents in the sports room at Clontarf. He knew it was wrong but he felt he could not say anything to the Christian Brothers because he would 'get belted'. Boys were regularly slapped across the face for talking back to the brothers.[156]
Tellingly, when Mr Lawrence was asked by his counsel whether he told anyone about what Brother Murphy was doing to him, he answered 'You've got to be kidding me'.[157] He explained that if the Brothers were told about the abuse, they would accuse the children of making up stories and belt them. Although it never happened to him, he saw it happen to other boys.[158] He said the Christian Brothers were bullies. The worst of them was the Superior - 'you go to him, you've had it'.[159]
I accept Mr Lawrence was threatened by Brother Murphy that he would be beaten if he was not quiet while he was being raped.
I accept Mr Lawrence did not report the sexual abuse he was being subjected to to anyone in authority because he was fearful he would be beaten and accused of being a liar. It is also understandable that because he was a 9 or 10 year old boy being sexually abused by his teacher, to whom you would normally expect you could confide in and from whom you could seek help, Mr Lawrence was led to believe there was no one to whom he could turn to stop the abuse. It is understandable he felt he was helpless and could not do anything. That sense of helplessness was compounded by his experience of seeing or learning of other children not being believed and being beaten when they reported allegations of sexual abuse.
That sense of helplessness was compounded by the disparity in their body sizes. Brother Murphy was 6 foot 2 inches in height. Mr Lawrence was only about 3 foot tall.[160]

[242]

Mr Lawrence was sexually abused by Brother Marques at Castledare when Mr Lawrence was aged about 11. Brother Marques was in his 60s.[161] He was in charge of the milk yard at Castledare. On weekends, four boys from Clontarf were selected to go to Castledare to help Brother Marques paint railing around the milk yard. Mr Lawrence was one of the boys. Brother Marques gave the three other boys jobs to do. He then took Mr Lawrence by the hand, telling him that they were going to the tuckshop. They started walking to the tuckshop but diverted into Brother Marques' bedroom.[162] Once inside the bedroom, Brother Marques sat Mr Lawrence on the bed and sat alongside him. Brother Marques then held Mr Lawrence's arms behind his back, and placed his other hand into Mr Lawrence's pants, massaging and fondling his genitalia, causing Mr Lawrence to have an erection while Brother Marques also had an erection.[163] Brother Marques also fondled Mr Lawrence's bottom beneath his underpants.[164] The incident occurred over about 20 minutes to half an hour.[165] This type of incident occurred about four or five times over a three month period.[166]
Brother Marques was later transferred to Clontarf to look after the dairy and the cattle and horses. While he was working at Clontarf, Brother Marques continued to offend against Mr Lawrence.[167]
One time when Mr Lawrence was at the milk yards when it was milking time, Brother Marques asked him to have a look at a vat containing milk. After Mr Lawrence climbed the ladder, Brother Marques climbed up behind him and slid his hands up beneath his shorts and underwear, fondling his genitalia, bottom and anus for about a minute.[168]
Mr Lawrence estimated Brother Marques offended against him in the same way on about five separate occasions over a period of about one and a half to two months.[169]
Brother Marques further offended against Mr Lawrence in the saddle room which was alongside the milking yard at Clontarf. It was a room where the horse saddles were stored.[170] Mr Lawrence recalled that one weekend when he was aged about 11, Brother Marques asked him to come to the saddle room to help him with something. After they both entered the saddle room, Brother Marques pushed Mr Lawrence by a shoulder to one of the saddles, telling Mr Lawrence to get over the saddle. Brother Marques then took down Mr Lawrence's pants and while standing behind Mr Lawrence, fondled his genitalia and bottom. Brother Marques then tried to penetrate Mr Lawrence's anus with his penis but was not able to force his penis into Mr Lawrence's anus because it was too big. Mr Lawrence was crying but Brother Marques took no notice. Mr Lawrence suffered pain. He again suffered bleeding from his anus. He was screaming while Brother Marques was trying to force his penis into Mr Lawrence's anus because of the pain. Brother Marques was moving backwards and forward, trying to insert his penis into Mr Lawrence's anus. He was 'pushing really hard'. Mr Lawrence was able to break away and run away from Brother Marques.[171] Mr Lawrence was uncertain of the duration of the incident.[172] He broke away because he could not stand the pain, he was crying and he screamed.[173]
On a later occasion, Brother Marques took Mr Lawrence into Brother Marques' bedroom and fondled Mr Lawrence's genitalia and bottom beneath his clothing while holding Mr Lawrence's hands behind his back. An older boy stood in the bedroom and watched what happened. Mr Lawrence eventually broke away and ran out of the room.[174]
On other occasions, while the boys were watching movies together in a large room at Clontarf Mr Lawrence described as the picture theatre with rows of chairs, Brother Marques sat beside Mr Lawrence and once the lights were turned off and the movie started playing, fondled and squeezed Mr Lawrence's crotch above his clothing causing Mr Lawrence to get an erection. Mr Lawrence estimated Brother Marques abused him in that way on three or four occasions.[175]
Mr Lawrence was regularly sexually abused by Brother Marques from about the age of 11 until he left Clontarf at the age of 16. The abuse happened about once a fortnight.[176] Much of the abuse occurred in Brother Marques' bedroom but also happened in other places at Clontarf such as the milk yard and the crushing room where oats were crushed.[177]

[243]

Mr Lawrence described Brother Angus as 'a fondler'. Brother Angus played with his genitals.[178] Brother Angus offended against Mr Lawrence in a workshop which was near the milk yard at Clontarf.[179] Brother Angus asked Mr Lawrence to come down to the workshop but nothing happened on the first occasion. Mr Lawrence again visited the workshop about a week later which is when Brother Angus first started touching Mr Lawrence inappropriately. He touched Mr Lawrence on his bottom above his clothes.[180]
Thereafter Mr Lawrence visited the workshop on a regular basis over a number of years. The type of fondling gradually became worse, such that Brother Angus was fondling his genitalia and bottom although he never made contact with Mr Lawrence's penis. He fondled Mr Lawrence while Mr Lawrence's pants were folded down. Brother Angus always had bags of lollies which he offered to Mr Lawrence every time he abused Mr Lawrence. On each occasion he fondled Mr Lawrence over a period of about 10 minutes.
This type of offending happened over a period of about four years, occurring on a regular basis.[181] Although Mr Lawrence estimated Brother Angus offended against him in this way about 40 times over a four year period, I place no weight on that estimation which in my view is unreliable. It is more important to understand how regularly and frequently the abuse occurred. However, I accept this type of offending by Brother Angus against Mr Lawrence occurred regularly over an extended period of time of about four years. It is artificial to now, after all of these years, expect Mr Lawrence to be able to reliably and accurately estimate how often such offending occurred, given how regularly it occurred. It is really an unfair question to ask Mr Lawrence. However, again I make no criticism of Mr Lawrence.
Mr Lawrence was also sexually abused by Brother Angus when Brother Angus drove them to restaurants to pick up the bins of slops to feed to the pigs. While Brother Angus was driving with Mr Lawrence sitting next to him, Brother Angus usually rubbed and fondled Mr Lawrence's genitalia beneath his clothing for an extended period of time causing Mr Lawrence to have an erection. Brother Angus never said anything while that was happening. This type of abuse happened regularly, Mr Lawrence estimated about 20 times.[182] At the time Mr Lawrence was aged about 13.[183]
My sense of Mr Lawrence's evidence about the abuse to which he was subjected by Brother Angus was that the abuse almost become normalised. Mr Lawrence was rewarded with bags of lollies and resigned himself to the abuse happening so that he could receive the lollies. The abuse almost became a part of the pattern of daily life at Clontarf. It was a way of surviving.
Mr Lawrence was frequently sexually abused by Brother Angus from the age of 13 to the age of 16 when he left Clontarf. Mr Lawrence was abused on a weekly basis.[184] Much of the abuse occurred in Brother Marques' bedroom.[185]

[250]

In cross-examination Mr Lawrence confirmed he was bullied by older boys at Clontarf because of his Birmingham accent. He agreed he was terrified of the older boys. They used to belt him and the younger boys from Birmingham.[215]
When he was transferred to Castledare he was aged about 9. The boys at Castledare were younger and smaller. He estimated there were about 40 boys at Castledare, split into three classes, grades 3, 4 and 5. Brother Murphy was in charge of grade 3.[216]
Mr Lawrence did not start bed wetting until he went to Castledare.[217] When he wet his bed he was flogged, as were other boys who wet their beds.[218]
Mr Lawrence agreed that the boys were given a lot of chores to perform: 'It was more chores than actual school work'.[219] When he first arrived at Clontarf as an 8 year old, he and the other boys were each required to sweep the quadrangle and chip about 15 bricks before breakfast which were to be used in building handball courts. For most of the first year he was at Clontarf, he and the other boys were required to chip bricks each morning before breakfast.[220] They chipped the bricks for 15 to 20 minutes.[221]
He did not have to perform any such chores at Castledare because the children were younger.[222] After he returned to Clontarf he and the other boys were required to perform physical labour by digging by hand a hole for a swimming pool. He estimated they spent five hours a day digging the hole for a swimming pool.[223]
When they were working on the swimming pool, they often finished work at 8 o'clock at night.[224]
At Clontarf Brother Mohen took detention on Saturday or Sunday nights when he arranged children in rows and beat them with a cane. Many of the boys would wet their pants in fear.[225] Brother Mohen would then order the children he had just beaten to crawl on their hands and knees into the assembly hall.[226] When a movie was being shown, Brother Mohen made the children sit in the centre isle with their backs to the screen and kick them while they were sitting.[227]
On weekends children were often allowed to spend time with people outside Clontarf but Mr Lawrence was sent back because he used to wet the bed.[228]

[252]

As I have earlier explained, most of the offending which has been pleaded in the statement of claim is admitted by the Christian Brothers, except as to the extent of it. However, the Christian Brothers deny that the abuse perpetrated by Brother Doyle when he caned Mr Lawrence on his bare backside, placing his hand on Mr Lawrence's bottom and caning him while he asked if Mr Lawrence was having sex with other boys, is sexual abuse. The Christian Brothers also deny the circumstances of the incident in the gym involving Brother Foley was sexual abuse.
I am satisfied the sexual abuse perpetrated upon Mr Lawrence happened in the circumstances as described by him. However, as I have already observed, except as to his evidence regarding the abuse perpetrated by Brother Murphy, I do not accept his evidence about the number of times he was abused. I accept Mr Lawrence was anally raped by Brother Murphy 15 or 16 times over a period of about two years, initially at Castledare and later at Clontarf. I also accept that when Brother Murphy anally raped Mr Lawrence, he first digitally penetrated him. The abuse only ceased after Brother Murphy was transferred from Clontarf.
I accept Brother Murphy violently and with such force penetrated Mr Lawrence's anus, first with his fingers and then with his erect penis, that on the first occasion it caused bleeding from Mr Lawrence's anus. Thereafter, Mr Lawrence regularly suffered from anal bleeding, often after he was again raped by Brother Murphy. Mr Lawrence continued to suffer from anal bleeding into his adult life until he underwent surgery.
Mr Lawrence said he had the surgery when he was aged 45.[230] Mr Lawrence turned 45 in 1989 which is about the time he started to receive the invalid pension. While medical documentation for that period (which mainly relates to the application for the invalid pension) has been tendered into evidence, there is no contemporaneous medical record referring to surgery for haemorrhoids. In his report of 22 August 2019[231] Dr Watson records a history that Mr Lawrence underwent haemorrhoid surgery in 1975, after nearly a decade of rectal bleeding, which resolved the haemorrhoid problem. In 1975, Mr Lawrence was aged 31. The chronology filed on behalf of Mr Lawrence identifies the haemorrhoidectomy being performed in 1975, identifying the evidence in support of that submission as Dr Watson's report and Mr Lawrence's evidence, even though the evidence is contradictory. The written closing submissions refer to the surgery being performed when Mr Lawrence was aged 45 years.[232]
It is unclear what is the source of Dr Watson's mention of the surgery being performed in 1975. Although in his letter of instructions from Mr Lawrence's solicitors Mr Watson was provided with medical records from RPH and Sir Charles Gairdner Hospital, those records have not been identified as the source of the information. The only records from 1975 which have been tendered are the Heathcote Hospital records which do not refer to any haemorrhoid surgery. Therefore, the source of the information must have been from Mr Lawrence. However, the history is still confusing because if Mr Lawrence had been suffering rectal bleeding for nearly a decade, it would follow the bleeding started when he was aged 21, not when he was aged 9 when he was first raped by Brother Murphy. No attempt was made to clarify the position during Mr Lawrence's evidence. Had Mr Lawrence undergone the surgery in 1989, I would have expected the medical records to have confirmed that. They do not.
The position is rather unsatisfactory. The evidence is contradictory and inconsistent. The matter is of some significance because if Mr Lawrence suffered rectal bleeding and haemorrhoids from the time he was first raped by Brother Murphy until well into his mid-40s, such a physical injury is, at the least, relevant to the assessment of general damages for pain and suffering and loss of amenities. Mr Lawrence was not cross-examined to suggest that he did not suffer rectal bleeding after he was first raped by Brother Murphy or that the rectal bleeding was not a recurrent problem over an extended period of time. I accept Mr Lawrence's evidence that he did suffer rectal bleeding as a consequence of the first time he was raped by Brother Murphy. I am satisfied that from that point onwards he suffered from recurrent rectal bleeding throughout his time at Castledare and Clontarf. I find that the rectal bleeding would often return when he was raped on other occasions by Brother Murphy. I also find Mr Lawrence suffered rectal bleeding when Brother Marques attempted to anally rape him. I find the rectal bleeding regularly recurred spontaneously, that is without Mr Lawrence being subjected to physical trauma.
I find he continued to suffer from recurrent rectal bleeding until he underwent haemorrhoid surgery. However, I cannot be certain when this surgery was undertaken. Doing the best I can given the unsatisfactory state of the evidence, I find Mr Lawrence probably underwent haemorrhoid surgery at a time pre-dating the earliest medical records which have been tendered into evidence, that is before June 1975. Therefore, Mr Lawrence probably underwent haemorrhoid surgery in his late 20s. Following the surgery, he no longer suffered from rectal bleeding. Therefore I find Mr Lawrence probably suffered from rectal bleeding for a period of approximately 20 years. Although Mr Lawrence did not give any evidence about any discomfort he suffered because of the rectal bleeding and the haemorrhoids, I am satisfied he did suffer some discomfort. Certainly, he must have experienced embarrassment, especially as a child, because his shorts and underpants were stained with blood and he had to wear multiple pairs of underpants to stop the blood seeping through.[233]
During the time he was being abused by Brother Murphy, Mr Lawrence was also being taught by Brother Murphy which compounded the impact of the offending on Mr Lawrence.
I am satisfied that, as described by Mr Lawrence, Brother Marques, on one occasion in the saddle room near the milking yard at Clontarf, attempted to anally penetrate Mr Lawrence with his penis but was unable to. The violence and force of the attack upon Mr Lawrence was such that he again suffered anal bleeding. He screamed out in pain.
When Brothers Murphy and Marques offended against Mr Lawrence, he was a small child, about 3 foot high, aged 9 to 11. Brothers Murphy and Marques were much physically larger than Mr Lawrence. Brother Murphy, who Mr Lawrence estimated was 6 foot 2 inches tall, was twice the height of Mr Lawrence. The horror and pain Mr Lawrence must have experienced can be barely imagined.
I am satisfied the other types of sexual abuse Mr Lawrence described being perpetrated upon him by Brothers Murphy and Marques, which included repeated and frequent genital fondling and masturbation, occurred.
I accept that Brother Angus regularly sexually abused Mr Lawrence by regularly and frequently fondling his genitals and anus.
I also find that the teacher, Mr Jackson, sexually abused Mr Lawrence on two occasions at Clontarf when he ordered Mr Lawrence to strip naked and then put a skirt and blouse on. After applying lipstick to Mr Lawrence, Mr Jackson fondled and rubbed his penis and anus and performed oral sex on him.
I am satisfied that the abuse perpetrated upon Mr Lawrence by Brothers Murphy, Marques and Angus and by Mr Jackson was sexual abuse within the meaning of that term in s 15A of the CLA.
I also accept Mr Lawrence was sexually abused by a working boy named Blackmore at Clontarf when Blackmore forced Mr Lawrence to perform oral sex on him and urinated in Mr Lawrence's mouth. I am satisfied that incident is sexual abuse within the meaning of the term in s 15A of the CLA.
I am further satisfied that the incident involving Brother Foley when he made Mr Lawrence strip naked and lift weights while Brother Foley watched occurred as described by Mr Lawrence. I am satisfied that incident constitutes sexual abuse within the meaning of that term in s 15A of the CLA. For a person having the care of a young child to order the child to strip naked and lift weights while the person stood watching can only have been done for sexual gratification and because Brother Foley had a sexual interest in a young boy. There was no suggestion by counsel for the Christian Brothers that there was any legitimate or proper purpose for Brother Foley ordering Mr Lawrence to strip naked and lift weights while Brother Foley stood watching him. Although Mr Lawrence did what he was directed to, he did not truly consent to the activity. He had no choice but to do what a Brother directed him to do. If he had refused to do what he was told to do, it is likely he would have been beaten. Mr Lawrence was also too young to truly consent to the activity. Such conduct, if it occurred now, would constitute indecent dealing for the purposes of the criminal law.[234]

[253]

I then turn to consider Mr Lawrence's evidence about the abuse perpetrated on him by Brother Doyle when Brother Doyle regularly caned him on his bare backside while placing a hand on his bottom and questioning him about whether he had been involved in sexual activity with other boys. While the Christian Brothers do not admit Mr Lawrence was treated in the way described by him, they do not dispute it happened. Mr Lawrence was not cross-examined to suggest the incidents did not happen. I have no difficulty in accepting Mr Lawrence's evidence that he was physically abused in the way described by him. I am satisfied that type of incident happened at least twice a month.
The more difficult issue is whether that sort of abuse or conduct falls within the meaning of the term 'sexual abuse' in s 15A of the CLA. In my view it does.
Counsel for the Christian Brothers submits that the caning was in accordance with the regulations permitting corporal punishment for offences against morality.[235] The caning was also for the purpose of training Mr Lawrence in the habits of truthfulness, honesty, modesty, and temperance so as to fit him to live an honourable and useful life after leaving Clontarf as required by reg 32. I have no confidence the Christian Brothers in general, and Brother Doyle in particular, had any regard to the welfare of the boys and their need for moral and spiritual guidance when they administered physical punishment to Mr Lawrence in the circumstances described by him.
The method by which Brother Doyle caned Mr Lawrence was not permitted by the regulations. Regulation 19 required that 'all degrading and injurious punishments shall be avoided'. Corporal punishment was to be inflicted as a last resort in the presence of a witness.[236] Every case of corporal punishment was required to be recorded immediately after the infliction of the punishment, giving details of the offence and the number of strokes administered.[237]
To pull a young boy's pants down exposing his bare backside, while placing his hand on the backside to hold the boy down while he caned him on the bare backside while questioning him about whether he had been involved in sexual activity with other boys, went well beyond what was permitted by the regulations. There is no evidence that any punishment administered to Mr Lawrence or any other of the boys was ever recorded as the regulations required. To administer the canings on such a regular basis, that is twice monthly, was not permitted by the regulations.
Nor did the nature of and frequency of the canings and other forms of corporal punishment reflect rules 76 and 77 of the Acts of the General Chapter.[238] Even if there was a justification for caning Mr Lawrence (which I do not accept) there was no reason for him to have his pants pulled down exposing his bottom and being caned on his bare bottom while Brother Doyle's hand remained on Mr Lawrence's bottom holding him down. In my view there was a degree of perversity and viciousness in the way in which the canings were administered to Mr Lawrence. I am also of the view that there was a degree of mental sexual gratification derived by the way in which the beatings were administered.
The canings certainly impressed upon Mr Lawrence that nothing would be achieved if he reported the sexual abuse being perpetrated upon him. The manner of the canings reinforced in his mind from what he had seen or heard had happened to other boys reporting sexual abuse the fear that he would be beaten if he reported the sexual abuse being perpetrated upon him.
In my view, the way in which Brother Doyle caned Mr Lawrence on his bare backside while questioning him about sexual activity with other boys, was a sexual act because it was done for mental sexual gratification. I am satisfied that that conduct falls within the meaning of the term 'sexual abuse' for the purposes of s 6A of the Limitation Act and s 15A of the CLA.

[268]

CD is aged 74. He was born in Essex, England. He was placed in an orphanage in Swansea in Wales. In 1952 he was sent to Western Australia under the Child Migrant Scheme and sent to Castledare where he remained from the ages of 6 to 12, leaving Castledare in 1957. He was then sent to Tardun Farm School, 500 km north of Perth, which was also operated by the Christian Brothers.[254] While he was at Castledare CD was sexually abused by Brothers Murphy, Marques and Smith.[255]
The first time CD was sexually abused by Brother Murphy was when he tried to sexually penetrate CD's anus with his penis. CD was aged 8.[256] CD was order to take off his pyjamas and to bend over. He was first penetrated by Brother Murphy's finger and then felt excruciating pain and screamed. Although he could not see he believed Brother Murphy had tried to insert his erect penis into his anus.[257] Brother Murphy then told CD to fondle him and masturbate him to ejaculation, which he did.[258] The incident occurred in Brother Murphy's bedroom after Brother Murphy woke him during the night and brought him into the bedroom.[259] CD could not be certain but estimated Brother Murphy sexually abused him in his bedroom five to seven times or more. Brother Murphy rubbed his naked body against CD until he became aroused and then forced CD to masturbate him to ejaculation.[260] Eventually CD started objecting to the activity and refused to go into Brother Murphy's bedroom when he woke him up during the night.[261]
He was also bullied by Brother Murphy who was his third grade teacher. When CD made a mistake in class Brother Murphy hit him in the back of the head with a strap. The more times CD made a mistake the more times he was hit.[262]
CD was also sexually abused by Brother Marques between the ages of 8 and 10. Brother Marques put his hands up CD's shorts and fondled his genitals three or four times in the piggery at Castledare.[263]
On one occasion he saw Brother Murphy standing in the hall behind a boy who was bending over. Brother Murphy did not have any pants on and was laughing. He said he was aged between 9 and 11 at the time.[264] That incident occurred during the day.[265]
Either later that same day or the next day CD reported what he had seen to the Superior, Brother O'Doherty.[266] He had earlier complained to Brother O'Doherty about Brother Murphy abusing him.[267] He told Brother O'Doherty what Brother Murphy had done to him after he had told Brother Murphy to stop abusing him and that he did not want to go into his room anymore.[268] In response to reporting the matters Brother O'Doherty 'smacked' CD in the face and accused him of being a liar.[269] CD later ran away twice from Castledare 'because there just seemed to be no answers'.[270] On both occasions he was taken back to Castledare by the same police officer. Each time CD reported the allegations to him.[271] After CD was returned to Castledare Brother O'Doherty gave CD a 'hiding' in front of all of the boys.[272] CD was accused of being disloyal by running away.[273]
CD recalled an episode that while he was being bullied a length of '4 x 2' was thrown at his feet splitting a toe. He reported to the surgery later in the day. The surgery was run by Brother O'Doherty. When Brother O'Doherty enquired what had happened CD told him that after he had objected to going into Brother Murphy's room at night he was bullied by Brother Murphy's boys and was laughed at by Brother Murphy. In response Brother O'Doherty smacked him and told him to 'shut up'.[274] CD complained to Brother O'Doherty about the sexual abuse by Brother Murphy two or three times and was called a troublemaker.[275]
After he reported the sexual abuse while he was at Castledare he was not abused again.[276]
The evidence of CD as to whether he continued to be sexually abused after he reported the abuse to Brother O'Doherty was confusing. Initially, he gave evidence Brother Murphy abused him 5 to 10 times after the first incident.[277] Later he gave evidence that after the first incident he reported the abuse to Brother O'Doherty.[278] When he was asked whether he was still sexually abused after he reported the sexual abuse he said he was not.[279] The evidence that CD was subjected to further abuse by Brother Murphy after CD reported the first incident to Brother O'Doherty is inconsistent with his evidence that after he reported that first incident the abuse stopped.
However, the inconsistency in CD's evidence is explained on the basis that when he reported the incident when Brother Murphy attempted to anally rape him, Brother Murphy never attempted to again rape CD. Instead, Brother Murphy sexually abused him by rubbing himself against CD and having CD masturbate Brother Murphy.
CD later said that he was probably abused by Brother Murphy at Castledare six to nine times but he could not remember the exact number of times or the exact years in which he was abused.[280] He thought he was probably aged between 9 and 10 when the sexual abuse stopped.[281]
He could not remember when he first reported the abuse to Brother O'Doherty but thought he was aged between 8 and 10.[282]
When he left Castledare he was taken to Tardun where he was subjected to further sexual abuse.[283]
I accept CD was sexually abused by Brother Murphy multiple times between the ages of 8 to 10. I also accept that CD reported the abuse to the Superior at Castledare, Brother O'Doherty, two or three times but was not believed and instead was struck by Brother O'Doherty.

[269]

Mr Lawrence's account of the circumstances which prevailed at Clontarf and Castledare at the time the sexual abuse was perpetrated upon him is also confirmed by the evidence of Paul Vincent Bradshaw, as set out in a redacted affidavit sworn by him on 29 June 2018. The redacted affidavit was tendered pursuant to s 79C of the Evidence Act 1906 (WA), Mr Bradshaw having died.[284]
Mr Bradshaw was made a ward of the state when he was a baby and placed in a foundling home. At the age of 7, he was sent to Castledare where he stayed until he was aged 10 when he was transferred to Clontarf. He remained at Clontarf until 1960 when he was aged 16.[285] Mr Bradshaw explained the sexual abuse to which he was subjected while he was a resident at both Castledare and Clontarf. While he was at Clontarf he recalled waking up one night and realising his pyjamas had been stripped from him and he was naked. All he could see was something black lying on him and in his terror, he thought it was the devil. He escaped and ran outside in a distressed state. He spoke to Brother McGee and told him the devil was after him. Brother McGee said he was having a bad dream. This type of incident happened about five times. Mr Bradshaw later realised the person was Brother Murphy. He was still wearing his black habit but the buttons had been undone. Mr Bradshaw recalled waking up with Brother Murphy on top of him, pushing his penis between Mr Bradshaw's legs until he ejaculated. Mr Bradshaw was terrified. He described Brother Murphy as a big man. Mr Bradshaw was aged only 7. After Brother Murphy ejaculated on him, he took out a handkerchief and wiped the ejaculate from Mr Bradshaw.[286]
He reported what had happened to Brother McGee on a number of occasions but Brother McGee kept telling him he was having bad dreams.[287]
In 1954, Mr Bradshaw was transferred to Clontarf and he and the other children who were being transferred were happy and excited because they thought they were escaping from what was happening at Castledare. He and the other children were terrified of Murphy because he was sexually abusing many children. He was also very violent. However, the following year, in 1955, Brother Murphy was also transferred to Clontarf. He was put in charge of the dormitory in which Mr Bradshaw slept. Frequently during the night Brother Murphy came to his bed and played with his genitals and masturbated himself until he ejaculated onto Mr Bradshaw. He then wiped Mr Bradshaw clean. Mr Bradshaw estimated that happened seven or eight times at Clontarf. Mr Bradshaw describes being terrified every time.[288]
Mr Bradshaw goes on to describe that the Brothers were very violent men and he saw them beating children all the time. He was also beaten. When he was beaten, he did not dare scream or protest because it would not have done him any good. There was nothing he could do.[289] Mr Bradshaw says that after he had been abused by Brother Murphy over a period of perhaps a couple of months, a friend of his told him that the abuse would not happen if he wet his bed. He then started to intentionally wet his bed and the abuse stopped.[290]
Mr Bradshaw with another boy was also sexually abused by Brother Angus. Brother Angus placed his hands down their pants and played with their genitals for several minutes. He then gave them a cigarette each and told them not to tell anybody. When the other boy was later caught by Brother Doyle with a cigarette, Mr Bradshaw was called over the loudspeaker to report to his office. He heard Brother Doyle questioning the other boy about why Brother Angus gave him a cigarette. The boy said because he let him put his hands down his shorts and Mr Bradshaw's pants and play with them. Brother Doyle then said 'show me what Brother Angus did' and then heard him hit the other boy with a strap six times. When Mr Bradshaw was brought into Brother Doyle's office, he denied he was given a cigarette by Brother Angus so he would not be struck.[291]
Mr Bradshaw described his time at Castledare and Clontarf as terrifying and destructive. Not only was he abused and beaten, he watched his friends being abused and beaten. He never felt safe. He had no family to escape to. There were no other adults who could rescue them. They were effectively prisoners, and the violent and sexually abusive Brothers could do whatever they wanted to the boys.[292]

[273]

Mr Lawrence's evidence as to the sexual abuse perpetrated upon him and the violent and terrifying conditions and circumstances which existed at both Clontarf and Castledare is also confirmed by the evidence given by former residents to the Royal Commission into Institutional Response to Child Sexual Abuse.[296] The evidence given at the Royal Commission by other boys who were subjected to the same type of sexual abuse and violence as was Mr Lawrence is consistent with his evidence. Brother Murphy is described as 'very dominant and possessive, and had complete control' of a group of about 30 boys. He was sexually and psychologically abusive.[297]
One witness talks about being abused from the age of 8 until the age of 12 when he had a nervous breakdown.[298] The witness said he was abused in Brother Murphy's room where he would be taken after being woken in the dead of the night. He was threatened to keep the sexual abuse secret.[299]
Another witness spoke about he and other boys being bashed by Brother O'Doherty in particular, and the orphans who had no connections outside the institution being picked on by the Brothers. Bigger children were picked on to make them submissive and frightened, which in turn made smaller children more controllable.[300]
Another witness gave evidence that he was beaten by Brother Doyle who forced him to confess to having had sex with another boy.[301] A witness also spoke about Brother Murphy attempting to sexually abuse him in his room.[302] Other witnesses spoke about other Brothers waking them during the night and sexually abusing them, including by fondling their genitals and rubbing their erect penises against the boys' bodies.[303]
The witness reported not having anybody to tell about the abuse, or not telling anybody about it because it became a way of life and he did not know any better. He also remembered thinking that if he said anything, he would be blamed.[304]
Another witness spoke about being sexually abused and trying to escape from Tardun and trying to report the abuse to police but he was not believed. Instead he was returned to Tardun and belted as punishment. The sexual abuse continued as it had before.[305] Another witness reported telling a nurse in a hospital about the sexual abuse and when he later returned to Tardun, he was given a severe belting with a strap for talking to the nuns. At one stage, the witness confessed to a priest and not long afterwards he again received the strap from the Brother.[306] He did not tell anyone else about the sexual abuse because it was too scary and he felt like it was his fault and he felt ashamed.[307]

[277]

In my view the physical and other abuse, including emotional deprivation, perpetrated against Mr Lawrence when he was young boy while he was living at Clontarf and Castledare is so inextricably intertwined and associated with the child sexual abuse that it cannot be separated from the sexual abuse. The physical and emotional abuse, and other forms of maltreatment, to which Mr Lawrence, and the other boys, were subjected while at Castledare and Clontarf, aided the occurrence of the child sexual abuse. The violence, cruelty and threats to which Mr Lawrence was subjected by, amongst others, Brothers Murphy and Doyle, created an atmosphere of fear, intimidation and subjugation which provided the basis for and which allowed the sexual abuse to occur and flourish. The children, because of their young ages, and because of the circumstances by which they came to be at Clontarf and Castledare, as orphans or being abandoned by their families and transported from England to Western Australia, were already particularly vulnerable and desperately in need of emotional support, care and guidance. That vulnerability was heightened by the pervading atmosphere of fear, intimation and subjugation at Clontarf and Castledare. Mr Lawrence was extremely vulnerable. The Christian Brothers, and others, who offended against him by committing gross acts of sexual abuse, took advantage of his vulnerability. They preyed upon him. Violence was endemic. It caused the boys, and in particular Mr Lawrence, and also AB and CD, to live in constant fear and suffer constant anxiety. Mr Lawrence was continually fearful and anxious that he would again be abused by a Christian Brother.
During the period when he was repeatedly anally raped by Brother Murphy, after Brother Murphy woke him in the night and took Mr Lawrence from his own bed into Brother Murphy's bedroom, Mr Lawrence was constantly living in terror of when he was going to next be taken from his bed and anally raped by Brother Murphy. That terror was reinforced and remained ever present because during that period Brother Murphy was also Mr Lawrence's teacher. The physical violence enabled the sexual abuse to occur. The threats of physical abuse if the child did not comply, or if the child reported the sexual abuse, enabled that abuse to occur in circumstances where the boys were disbelieved and were accused of lying.[309] Even a police officer did not believe the reports of abuse.[310] The boys were defenceless and felt helpless. The abusers knew and preyed on their vulnerability, defenceless and helplessness when they sexually abused the boys. The physical abuse made the boys more compliant because of the fear and anxiety created by the physical abuse. It exacerbated the sense of defenceless and hopelessness. Without the pervading atmosphere of fear, intimidation and subjugation, which was reinforced by the physical violence perpetrated against the boys it is unlikely the opportunity to repeatedly sexually abuse a boy would have arisen. At the least, the opportunity for repeated abuse would have been reduced.
The other forms of abuse to which Mr Lawrence was subjected by the Christian Brothers exacerbated the harmful impact of the child sexual abuse because it increased his sense of hopelessness and fear and his inability to do anything about it, while he was being sexually abused. The physical abuse perpetrated by Brother Doyle, and Mr Lawrence's knowledge of other boys being physically abused when they reported allegations of sexual abuse, caused Mr Lawrence to believe he would be beaten if he reported the sexual abuse, adding to his sense of helplessness and exacerbating the harmful impact of the child sexual abuse. The physical abuse caused the child sexual abuse to have a greater harmful impact on Mr Lawrence.

[281]

The second job Mr Lawrence had was also working on a farm. He cannot recall where the farm was but recalled it was in the south and thought the closest town was Collie.[330] Mr Lawrence's work involved him cutting wild turnip.[331]
The farmer was living by himself and sleeping in an open shed with a shower away from the shed which operated by filling up a tin can with holes in it with water.[332] The farmer used to look at Mr Lawrence while he showered. One night the farmer got into bed with Mr Lawrence and sexually penetrated him by penetrating his anus with his penis until ejaculation.[333]
Mr Lawrence was probably aged about 17 years when this incident occurred.
After Mr Lawrence was raped by the farmer he again suffered bleeding from his anus.[334]
The next day Mr Lawrence left that farm and walked to the neighbouring farm. He asked for a lift to Perth on a truck delivering a load of mallee roots to Perth. He told the farmhand what had happened to him and later stayed at the farmhand's parents' place for some months which Mr Lawrence described as 'very good'.[335]
Mr Lawrence's evidence as to how long he stayed at the farmhand's parents' place was confusing. Initially he said he stayed at their place for about 16 months.[336] Later, he said that when he returned to Perth, and after he was not allowed to go back to Clontarf, he was taken in by a family for six months who looked after him, after which he found work.[337] During the time he stayed with the family he was depressed and suffering poor mental health and was not able to work.[338]
Mr Lawrence's evidence as to when he briefly returned to Clontarf is also confusing. Initially, he said after working on a farm 30 miles out of Corrigin when he committed an act of bestiality with a dog, out of shock and shame for what he had done, he left the farm and returned to Perth which is when he went back to Clontarf, but they would not accept him back.[339] It was after that incident, he said, he was taken in by a family who saw him waiting beneath a tree. They took him in for six months and looked after him.[340] Later, in cross-examination, he said he went back to Clontarf after the first job, which was when he worked on the farm in Merredin for about two days.[341]
After Mr Lawrence stayed with the family for six months during which time they looked after him, Mr Lawrence obtained a job building milk crates in Victoria Park.[342] Mr Lawrence described himself as being mentally unwell at that time. He constantly thought about the sexual abuse to which he had been subjected. He was feeling depressed. He started getting migraine headaches. He felt very confused and mixed up.[343] He said:[344]

[283]

He was so confused and mixed up at the age of 17 he committed an act of bestiality with a farm dog.[345] As a result of that act he left the farm at which he was then working. He returned to Perth.[346] It was after that incident that he returned to Clontarf hoping that they would let him stay for a few days until they found another job for him. Instead, they said that they did not want him and slammed the gate in his face.[347] He went back to Clontarf because it was the only home he had. He did not have anywhere else.[348]
After he was told to leave Clontarf he walked a short way along the road and took shelter beneath a bush from the rain. While he was sheltering, an older couple in a car pulled up and asked him what had happened. They then took him to their home and cared for him for about six months.[349]
This is another instance of, at times, confusion in Mr Lawrence's evidence which was not clarified. It is unclear whether Mr Lawrence was taken into the care of two separate families on two separate occasions for a period of months, or when that happened. It is also unclear when Mr Lawrence briefly returned to Clontarf asking to be allowed back in. That is, whether it happened two or three days after he was told by Brother Murphy a job had been arranged for him at the farm in Merredin, or whether it happened some months later after he had worked on another farm out of Corrigin. It is unclear whether Mr Lawrence was confused or uncertain when it was he briefly visited Clontarf.
However, nothing significant turns on the confusion. It does not matter for the purposes of my findings as to the nature of the injury suffered by Mr Lawrence and its impact upon his life, whether it was in a few days that he attempted to return to Clontarf or whether it was within a few months. Neither does it matter whether Mr Lawrence was taken in by one or two families and over what period of time. Neither counsel has sought to make anything of the evidence. Nor do I. Nor is Mr Lawrence to be criticised for the confusion or his uncertain memory given the long passage of time which has passed.

[285]

Mr Lawrence applied for and started to receive a disability pension when he was aged 45. Until then, he had continued to try and obtain work.[350] With the assistance of his solicitors he prepared a list of the employment he obtained and with whom from the time he left Clontarf at the age of 16 until the age of 45.[351] The work he performed was generally in the nature of labouring or unskilled work. Prior to receiving the disability support pension he last worked when he was employed by Whittakers completing orders for timber supplies. In addition to the list, Mr Lawrence said he also worked for part of a cray fishing season as a deck hand at Shark Bay.[352]
Mr Lawrence described himself as a hard worker who loved work. He regarded himself as a very hard worker but was not easy to get on with.[353] He was very handy with his hands. He estimated that on average he worked about five months of every year.[354]
Since he has been in receipt of the pension, Mr Lawrence has done a little bit of gardening. He has also made trophies for soccer teams and made jewellery boxes.[355]
In cross-examination, Mr Lawrence agreed that at one stage he got into trouble with the police when he stole five pounds from a farmer. He said he had worked at the farm for four or five days and the farmer would not pay him any wages so he waited for the farmer to go to town and then took five pounds from his house. He was later arrested by the police in Merredin. The CWD became involved and bailed him out of prison.[356] They later got him a job at a nearby area where he had to keep an area tidy and weed free. It was labouring work. He worked in that position for about two days before leaving because he did not like it.[357]
Mr Lawrence performed the work building milk crates in Victoria Park for about five weeks. He learned how to weld milk crates together. The family whose house he stayed found that job for him. He left the job because he found it was boring and because he liked to travel.[358]
He thought he then worked on a farm at Kulin.[359] He obtained the work through the agricultural department.[360] That work lasted for about nine months. It involved general farm work, fencing and ploughing and seeding.[361]
In his teenage years and early 20s he worked mostly on farms as a labourer.[362] He later obtained work as a shearer and a roustabout. He worked as a shearer for a few years. He moved around a lot.[363] He also worked on cray fishing boats out of Sharks Bay.[364] When he was about 16 ½ to 17 years old he started working for the Cooper Brothers in road construction. He worked for them for about two years.[365] He also worked with wine makers.[366] Later, he worked at Bunnings and then Whittakers. His work involved general labouring work, completing timber orders.[367] He worked for a couple of years at Bunnings[368] and for about nine months at Whittakers.[369]
Mr Lawrence said he left Whittakers after he got into a fight with a fellow employee.[370] However, that recollection is likely to be wrong. As I will later discuss when referring to the invalid pension documentation, it seems Mr Lawrence ceased work at Whittakers after he injured his back at work and underwent surgery. He was in receipt of worker's compensation payments. There were attempts to train Mr Lawrence to perform light duties involving some office work and couriering work, but Mr Lawrence was unable to cope with those duties. Eventually he received a lump sum worker's compensation payment and he ceased his employment. A Centrelink record records that a Mr Philmore[371] at Whittakers said that Mr Lawrence cited medical reasons for his resignation. Mr Philmore also advised that Mr Lawrence was mentally unstable and was frequently involved in fights, which is consistent with Mr Lawrence's evidence that he got into a fight with a fellow employee. However, the reason for Mr Lawrence leaving his employment with Whittakers is more likely to be related to his back injury which caused him to be unfit for his work at Whittakers.
In 1975 he saw a doctor because he was experiencing sharp pain down the right side of his body. The symptoms commenced in October 1974.[372]
He was admitted to Graylands Hospital in 1977. At that time he was working as a shearer.[373]
He started abusing alcohol from the age of about 30.[374] His abuse of alcohol impacted upon his ability to work because he would often be too affected by alcohol to go to work.[375] At times he argued with fellow employees and became involved in physical fights when he lost his temper.[376] He clashed with his bosses.[377] He never worked full-time. He only worked a few days or a few weeks.[378] He would not stay at one job for long and would move on and find another job.[379]
Mr Lawrence started taking antidepressant medication at the age of 17.[380] From the age of 18 he started overdosing on medication to try to kill the pain.[381] He overdosed on Amitriptyline.[382] On occasions he would take three or four tablets every half an hour, making him feel like he was 'on cloud nine'.[383] He overdosed in various places including a toilet at a hotel in Perth when he was aged 22. When he was initially prescribed the antidepressant medication by a doctor he felt depressed and he was not able to function properly or do anything.[384] He described a time when he was aged about 30 and working at Dalgety Downs station in the Kimberley when he was drinking beer at the end of the day he started having funny thoughts about Brother Murphy and ended up taking another worker's heart tablets and swallowing the contents of the bottle. The next thing he remembered was waking up in RPH.[385] He only worked at Dalgety Downs for about four days.[386]
Mr Lawrence has frequently been admitted to hospital after he overdosed. He said that he took overdoses 'because I was sick of life ... I was sick of what happened to me'.[387]
Currently he takes antidepressant medication.[388] He is constant thinking about what happened to him when he was young.[389] He has engaged in self-harm behaviour by burning his arms with cigarettes. He explained:[390]

[385]

The recorded impressions were that Mr Lawrence was suicidal and needed psychiatric assessment. He was still mildly hypertensive, probably for more than two weeks.[449]
On 16 November 1995, Mr Lawrence was admitted to Sir Charles Gairdner Hospital requesting psychiatric help following a drug overdose. He was seen by Dr Leys. He was reviewed by a psychiatrist, Dr Stampfer. It was noted he was recently seen at Bentley Hospital. He was discharged from Sir Charles Gairdner Hospital to the Bentley Hospital on 17 November 1995.[450] The handwritten notes of the doctor who apparently reviewed Mr Lawrence in the emergency department took a history that Mr Lawrence was 'depressed, claims abuse by Christian Brothers'.[451] It was also reported that Mr Lawrence claimed to have been sexually abused by a social worker. On the day he was reviewed, Mr Lawrence reported he was 'feeling down - wanted to take own life'. It was also recorded that Mr Lawrence attempted to cut off fingers of his right hand.[452]
At that time, Mr Lawrence was aged 51.
On 20 November 1995, Mr Lawrence was reviewed by a consultant psychiatrist, Dr Stampfer. In his report, Dr Stampfer noted that Mr Lawrence had overdosed twice recently. He had presented to RPH about a week ago after an overdose and just prior to that had admitted himself to the psychiatric unit at Bentley Hospital. He only remained in hospital for a day or so. As soon as he got out of hospital, he took another overdose. Dr Stampfer expressed the view that the 'impulsive suicide attempts, have been expressions of difficulties in coping since he and his wife separated a few weeks ago'. The turbulent marriage over many years was noted.
Dr Stampfer noted that on examination, Mr Lawrence did not show evidence of active depression but appeared tense and mildly disorganised in his thinking. The recent difficulties with his wife had stirred up memories and claims of sexual molestation from when he was a resident at Clontarf between the ages of 8 to 15.
Dr Stampfer recommended Mr Lawrence be admitted to hospital for a brief period and thought it was appropriate for him to return to Bentley Hospital.[453] No medical records of Bentley Hospital are in evidence.

[410]

Mr Lawrence was admitted to RPH on 21 June 1998, following a drug overdose, and discharged on 8 July 1998, a period of 18 days.
In a report dated 26 August 1998, Dr Budrikis, a psychiatric registrar, and Dr Wynn Owen, the consultant psychiatrist, jointly authored a report summarising Mr Lawrence's time in RPH after he was admitted on 21 June 1998. The diagnosis was depression. The recorded history taken from Mr Lawrence reflects the handwritten notes I have summarised above. It was noted Mr Lawrence 'described being under considerable stress because of an upcoming court case at which he is to be a witness against a Christian Brothers priest charged with sexual abuse'. He was under significant pressure from his support group for him to testify. It was noted under the heading 'past psychiatric history' that Mr Lawrence had seen many psychiatrists for short periods of time, most recently Dr Garside at Bentley Clinic in 1997 and had been prescribed antidepressant and antipsychotic medication. As I have earlier noted, there are no medical records or reports in evidence from the Bentley Clinic.
It was also noted that Mr Lawrence had had multiple spinal operations and was in chronic pain. The sexual abuse while at Clontarf is referred to.
In the concluding paragraph, the report notes Mr Lawrence displayed 'a degree of emotional lability'. Having regard to an abnormal CT scan, the doctor suggested Mr Lawrence might have early dementia.[466]
On 20 October 1998, Mr Lawrence was again admitted to the emergency department of RPH.
The notes record Mr Lawrence's extensive past psychiatric history. He presented with 'increasing anxiety, suicidal ideation and panic attacks' over the last three weeks. Feelings of depression were also reported which were precipitated by a pending court case in which Mr Lawrence was to be the main witness, which was clearly a reference to the anticipated criminal trial concerning Brother Murphy. It was noted Mr Lawrence had little social support. It was also noted that Mr Lawrence complained of 'inability to cope with life'. He had separated from his wife the previous week and was awaiting a trial in which he was to be a witness. Mr Lawrence reported that:

[438]

Although the date is unclear, it seems that during 2003, Mr Lawrence was seen at the RPH emergency department after he was referred from the Swan Health Service because he was suicidal. The referral to RPH may relate to when Mr Lawrence was seen at the Swan Health Service or Swan Districts Hospital in February and March 2003. In a note dated 26 February 2003 from the psychiatric emergency team, there is a reference to Mr Lawrence's recent cardiac problems and threats to kill himself. It seems that people were trying to contact Mr Lawrence but the position from the notes is unclear.[487]
Mr Lawrence was seen at the Swan Districts Hospital on 7 March 2003 after a drug overdose. Mr Lawrence's psychiatric history, which is consistent with the history noted over the preceding years by various hospitals and doctors, was noted. A depressive illness with persecutory delusions against a background of chronic low mood, past traumas and rigid personality was noted as was that Mr Lawrence was feeling unwell and lacked insight.[488] The hospital discharge summary records that Mr Lawrence was admitted to hospital on 7 March and was in hospital from 15 to 27 March 2003. The final diagnosis was 'organic delusional disorder - alcohol abuse'. It was noted Mr Lawrence presented with 'features of post-traumatic stress disorder as a result of being placed in institutional care as an infant, and being subjected to fairly severe sexual abuse'. Dr Banerjee was the consultant psychiatrist.[489] Dr Banerjee's report explains that during the first part of Mr Lawrence's admission he was commenced on antipsychotic medication but when he realised he was a voluntary patient he insisted on being discharged. He was then allowed home but was not compliant with his medication and was later readmitted. Soon after his readmission he threatened to leave and it was necessary to make Mr Lawrence an involuntary patient under the Mental Health Act.[490]
In May 2003, Mr Lawrence was seen by an occupational therapist, Ms Papanicolaou, of the Viveash Rehabilitation Centre. She sent a report dated 10 May 2003 to Mr Lawrence's general practitioner, Dr Baker. Strategies to deal with Mr Lawrence's stress and anxiety were addressed. However, Mr Lawrence resisted all attempts to engage him in their service. Recommendations were made for Mr Lawrence to receive ongoing therapy. It was noted that Mr Lawrence's poor memory and concentration were barriers to his capacity to learn new information. Mr Lawrence expressed a sense of helplessness and hopelessness in controlling his life.[491] Physical health concerns being heart and back problems were also noted.
Mr Lawrence was seen by another occupational therapist, Ms Kirby, on 4 June 2003 upon referral from the Swan Adult Mental Health Centre. The history of the need for psychiatric treatment for depression associated with sexual abuse as a child while in institutional care was noted. It was also noted that Mr Lawrence was working every Tuesday and Friday morning (six hours per week) at Enterprise East HCSG as a gardener.[492]
By letter dated 14 September 2003, a psychiatrist, Dr Min Zhu, from RPH to the Swan Mental Health Service advised Mr Lawrence was transferred to RPH from Swan Districts Hospital 'last night'. He was intoxicated and 'became violent in his unit'. A history of panic attacks was noted. It was also noted Mr Lawrence reported 'it wasn't true suicide attempt reported by patient'.[493]
On 30 October 2003, Mr Lawrence attended at the Swan Districts Hospital Emergency Department after a drug overdose in the context of ongoing difficulties with his wife.[494]
On 4 December 2003, Mr Lawrence was admitted to the emergency department of the Swan Health Service heavily intoxicated after drinking a bottle of Bacardi and threatening suicide. Mr Lawrence reported that his sexual abuse as a child always came back to him when he drank alcohol. It was noted that Mr Lawrence did not seem depressed or suicidal and he was not violent at the time he was assessed. However, due to previous violent behaviour when he was unable to be assessed, he was referred to RPH.[495] The emergency department notes record:[496]

[469]

As I have noted there are large gaps in Mr Lawrence's medical records relevant to his psychiatric condition. There is an approximate four year gap between 1980 and 1984 when Mr Lawrence was admitted to Heathcote Hospital for approximately two weeks suffering from suicidal thoughts. Thereafter, except for a passing reference to Mr Lawrence's 'unfortunate background' in orphanages and difficulties he was having with coping with life's stresses, and during 1989 when Mr Lawrence was assessed for his eligibility for the invalid pension, there are no further records for seeking medical treatment for his psychiatric condition until on 8 September 1994 he reported to RPH emergency centre after a drug overdose. Therefore there is a period of over 10 ½ years when Mr Lawrence, apparently, did not receive any medical treatment for his psychiatric condition. Further, except for the two week admission to Heathcote Hospital in January 1984, there is no medical evidence concerning Mr Lawrence's psychiatric condition for a period of over 14 ½ years. The reason for that gap is largely unexplained. Although Mr Lawrence agreed in cross-examination that as at 1989 there was a four to five year gap in his psychiatric history,[523] that gap has otherwise not been addressed in the evidence. Mr Lawrence gave no evidence, nor was he asked, what was the state of his psychiatric condition over that period of time and how he was coping on a daily basis. I accept there were difficulties because of Mr Lawrence's reticence, of which I have earlier spoken, and also because of the passage of time, in Mr Lawrence giving clear evidence about some periods in his life. More recent medical records note memory loss and signs of dementia.[524] When he answered questions in his evidence-in-chief about the period from the time he left Clontarf until he started to receive the invalid pension he said he was taking antidepressant medication and regularly overdosed on prescription drugs with various attendances to Fremantle, Royal Perth, Sir Charles Gairdner, Bentley and Heathcote Hospitals.[525] He was sick of life.[526] However it was not all of the time he felt like that but every now and again memories of what happened to him when he was young came back to him which led to thoughts of suicide.[527] It happened about once a month.[528] There are also instances of self-harm.[529]
Mr Lawrence became confused and was unable to remember when he was married.[530] His drinking problems increased about five years after he was married[531] causing him to be too ill to go to work.[532] On occasions he told doctors he had stopped drinking even though he had not, because he did not want to get onto the wrong side of them.[533] His problems occurred when his former wife 'booted' him out of the house or threatened to.[534]
Mr Lawrence said that after he underwent back surgery he became ill from overdosing and ended up in hospital. He was 'losing my block all the time'.[535] He frequently lost his temper with other people.[536]
When he was cross-examined about the invalid pension application documentation, and in particular the medical assessment of Dr Lee of 10 May 1989[537] in which Dr Lee, noting a history of nervous breakdowns, recorded that according to Mr Lawrence, he no longer considered that was a problem and he was not on any medication, Mr Lawrence said he could not remember what he said that long ago.[538] Dr Lee also recorded that Mr Lawrence said that he had not seen a psychiatrist or a psychologist for more than 10 years.[539] Mr Lawrence said he was depressed at the time and was confused and could not remember what he had said.[540] In re-examination Mr Lawrence said his mental health had not improved since he started receiving the pension in 1989 and that his mental health had not improved since the day he left the orphanage.[541] He also confirmed that he had been admitted to Heathcote Hospital in the mid-1980s and that therefore the history recorded by Dr Lee that he had not seen a psychiatrist or a psychologist for more than 10 years was incorrect.[542] The reference to being admitted to Heathcote Hospital in the mid-1980s must be a reference to Mr Lawrence being admitted to hospital on 3 January 1984 when he was hospitalised for approximately two weeks.[543]
I accept that the history Mr Lawrence provided to Dr Lee about his psychiatric history was not accurate, probably because there was some confusion about the significance of his psychiatric history, but also because the focus was understandably then on his back condition for which he had recently undergone three major operations. His back condition, I am satisfied, was the immediate cause of him being unfit to perform the tallyman work he had been doing at Whittakers. It was only after his initial application for the pension was declined, because it was determined he did not meet the threshold requirement, that the attention shifted to his psychiatric background. There is no question that background continued to feature in Mr Lawrence's life. The background was acknowledged in the initial pension documentation.
Dr Lee's 'Combined Impairment Assessment'[544] recorded an impairment rating of 10% for each of Mr Lawrence's back condition and his psychiatric condition, which was described as Bipolar Affective Disorder.
The significance of that background and its impact upon Mr Lawrence's life and capacity for work only became apparent when the initial application for the pension was declined. Thereafter the focus was as much on Mr Lawrence's psychiatric background as on the consequences of his back condition. The various social worker reports of 18 August 1989, which post-date the rejection, on 17 May 1989, of Mr Lawrence's application for the pension,[545] provide significant detail about the impact Mr Lawrence's life-long psychiatric issues had had upon his life. It was recommended that Mr Lawrence be granted the invalid pension because he was 85% permanently incapacitated for work, taking into account both his psychiatric illness and his back condition.[546]
It is difficult to know what to make of the gap in the evidence over that period of time. It covers a period when Mr Lawrence was aged 35 to 50. He had of course started receiving the invalid pension in 1989 or 1990 when he was aged 45.
There is a consistent pattern of exacerbation of Mr Lawrence's mental health condition during the 1970s with multiple suicide attempts and frequent periods of hospitalisation. There is a pattern of anger management issues and conflict with various people, especially at work.
From Mr Lawrence's evidence about the circumstances in which the invalid pension documentation was completed, I am satisfied he was continuing to suffer symptoms associated with his psychiatric illness caused by the sexual abuse. It may be that during that period Mr Lawrence was relatively stable in his personal circumstances, principally in relation to his marriage to his former wife, and was not drinking as much. Also, until he injured his back while working for Whittakers it seems he had been in relatively stable employment for a period of time, although for how long is uncertain. Neither counsel has submitted the extended gap in the medical evidence is significant. There is no suggestion that Mr Lawrence's psychiatric condition suddenly resolved in the mid-1980s and then recurred in 1994. There is no suggestion Mr Lawrence did not continue to suffer from psychiatric illness caused by the sexual abuse.
I infer, that despite the unexplained gap in the medical evidence, it is probable Mr Lawrence was experiencing a period of stability in his life and was better able to function and cope with the daily stresses of life. However he was still afflicted by psychiatric illness, PTSD, depression and an Alcohol Abuse Disorder. The nature of his psychiatric illness is such that he is vulnerable to emotional upheaval at times of crisis. His ability to cope in times of stress is impaired. He often copes by abusing alcohol and overdosing on drugs. Although he continued to suffer from psychiatric illness, he was able to satisfactorily manage his illness over that period of time. However by 1994, when he had not performed any significant work for five or six years and had been in receipt of the invalid pension for four or five years and when marital difficulties increased, his vulnerable personality associated with his psychiatric illness led to a decline in his wellbeing. Since September 1994 there have been frequent admissions to hospital associated with a consistent pattern of exacerbations of Mr Lawrence's mental health condition, multiple suicide attempts by drug overdose and an increasing inability to cope with daily living associated with a lack of stability and support in his domestic life. It is similar to the history from the 1970s.

[559]

In or about 1989,[596] a review manager placed a note on Mr Lawrence's Centrelink file recording that he had spoken to Dr Kaczmarczyk about the apparent discrepancies in his reports, specialist reports and CMO exam. Dr Kaczmarczyk advised that his reports were based on information given to him by the patient. He felt that spinal problems were the major medical factor of his incapacity at present and agreed that there had not been a psychiatric admission for nearly 10 years. The review manager commented further that he had spoken to Mr Philmore at Whittakers about Mr Lawrence's reasons for leaving employment, and Mr Lawrence had cited medical reasons for his resignation. Mr Philmore's impression was that Mr Lawrence did not like the work. He also felt Mr Lawrence was mentally unstable, he was subject to mood swings and was frequently involved in fights.
Mr Lawrence said he could not remember what his position was in 1989, whether he did require medication for mental illness, or whether he was keen to undertake rehabilitation and work training.[597]
Mr Lawrence agreed that in 1989 he was not able to sit for very long, probably about half an hour, because of his back and that he was taking painkilling medication to help control his back pain.[598] He agreed that because he developed an ulcer he had to cease taking painkilling medication and therefore had to cope with his back pain without any medication.[599] He agreed that in 1989 it took him awhile to get out of bed because he was stiff and suffered pain at sudden movements.[600] Because of his neck and back pain he was unable to cope with even light duties.[601]
He agreed there was a gap from when he had last seen a psychiatrist because of the psychiatric issues arising from his traumatic life in Clontarf and Castledare.[602]
Mr Lawrence also agreed that in 1989 he found it increasingly difficult to cope with the light duties given to him at Whittakers because of his back pain and lack of mobility.[603] He accepted that he had become irritable because of back pain which put stress on his marriage and at the same time he was drinking a lot of alcohol.[604]
On 10 July 1997, Mr Lawrence and his treating doctor completed a medical review assessment proforma for Mr Lawrence's disability pension. The assessment states:[605]

[578]

The form was co-signed by another officer on 13 August 1997.
Mr Lawrence remained on the disability pension from approximately August 1989 until he was aged 65 when he started receiving the aged pension.[607]
The only work he performed after receiving the disability pension was some voluntary gardening work for the Hills Community Group.[608] He performed gardening work for elderly people at their homes. He recalled having done that work for about 12 months, 26 years ago.[609]
When his entitlement to a disability pension was reviewed in 1997, he advised the reviewing doctor that his ongoing problems was chronic back pain, his heart condition and his mental condition, all of which made him unable to work.[610] He disagreed that he told Dr Wearne that he was in receipt of the disability pension only because of chronic back pain.[611]
Mr Lawrence said that since 2001 he no longer suffers from chronic back pain.[612]
When a medical note from Dr Davies from the North Street Medical Centre, which states Mr Lawrence had developed back pain with radiation down his legs, was put to Mr Lawrence, he said he could not recall suffering back pain in 2006.[613] He said he had not had back pain for a long time.[614]
However, he accepted when he saw his general practitioner, Dr Martin, on 25 October 2017 he was suffering from worsening back pain for which he was taking Panadeine Forte.[615]
In re-examination Mr Lawrence, asked how his back pain was when he presented to Swan Districts Hospital in 2001 compared to when he commenced receiving his disability pension payments in 1989, replied, 'it was about average'. His back pain in 2001 was a lot better than it was in 1989.[616]
Mr Lawrence was asked about the extent of his back pain in December 1998 when he attended upon Dr Wearne. He could not remember her name.[617] Mr Lawrence said that at that time he was overdosing and describing himself as chronically depressed.[618] During that time Brother Murphy was charged with rape offences committed against Mr Lawrence and was facing trial.[619] He described his mental health at the time as 'pretty bad'. He had a 'breakdown'.[620]
When he was taken to the disability support pension form headed 'Medical and Other Information', signed by him on 10 July 1997, but in which information was recorded by another person,[621] Mr Lawrence said that the note in s 11 in response to the question 'What is the highest qualification you obtained - Nil No Education at Clontarf - Just Sexual abuse', was a reference to being raped.[622]
Mr Lawrence confirmed the entry 'mental problems' in s 15 in response to the question 'Do you have a drug or alcohol problem which would stop you from doing a work rehabilitation or training programme?' was definitely correct.[623]
Mr Lawrence said that his mental health has not improved since the day he left the orphanage.[624]
Despite the note in the Department of Social Security file notes, which appear to have been recorded in 1989,[625] that:

[581]

By reference to the note 'have had many nervous breakdowns' in the Department of Social Security medical details form signed by Mr Lawrence on 13 March 1989 when applying for an invalid pension,[631] Mr Lawrence said that he had that many breakdowns between leaving school and 1989 he could not count them and he would only be guessing.[632] The breakdowns required him to be hospitalised.[633] He said he had too many memories about the past and started sweating and started to have a breakdown.[634] He said he was not a very intelligent man and it was 'very hard for me to sort of explain things'.[635] His nerves 'started to pack up' and he 'started shaking and depression came in, and rather than drink or overdose I went to the hospital'.[636] He said that if he drank or had an overdose it would have made him 'a lot worse'.[637] However there were also times where he did drink or overdose and ended up in hospital.[638]
At the time he was working for Whittakers he was drinking a 4 litre cask of wine during a night about twice a week.[639]
He estimated his back had been 'pretty good' for 'about 30 odd years'.[640]
He has suffered four heart attacks. After each heart attack it took him about three weeks to recover.[641]
He confirmed he had a heart attack in 1994.[642] Since then, he has received ongoing treatment for his heart condition.[643]
He accepted after his first heart attack he was worried about having a further heart attack.[644]
In 2005, a heart defibrillator was implanted which Mr Lawrence said is renewed every seven years. He also attends for a check-up every three months. A pacemaker was inserted about three months ago.[645]
Except for three short reports tendered by the Christian Brothers,[646] no medical evidence has been adduced relevant to the heart attacks suffered by Mr Lawrence. Although Mr Lawrence said he had a heart attack in 1995 when he was living in Midland[647] and Dr Watson, in his report of 22 August 2019,[648] notes that in 1995 Mr Lawrence was admitted to Sir Charles Gairdner Hospital with an 'acute inferior myocardial infarction due to occlusion of the right coronary artery',[649] which information is unlikely to have been provided by Mr Lawrence and must have come from a medical record, the record is not in evidence. However, as both parties have apparently proceeded on the basis that Mr Lawrence's medical history as recorded by Dr Watson is evidence of the truth of the history, I accept the history is correct. This history is also confirmed by medical records which are in evidence to which I am about to refer.
When Mr Lawrence suffered his first heart attack he was aged 50 or 51. He had been in receipt of the invalid pension since about late 1989.
I have earlier referred to Mr Lawrence being admitted to Fremantle Hospital on 24 June 1996 after he was transferred from Sir Charles Gairdner Hospital following a drug overdose.[650] The Fremantle Hospital progress notes also record Mr Lawrence's medial history as suffering from peptic ulcers, ischaemic heart disease with AMI (acute myocardial infarction) three months ago and back pain with three spinal fusions.[651] There is also a reference to 'previous inf AMI' in the emergency department notes of 30 June 1996 when Mr Lawrence was admitted after a drug overdose.[652] A handwritten inpatient note by Dr Chew of Sir Charles Gairdner Hospital records that on 20 January 2003 Mr Lawrence was booked for an angioplasty.[653] He had earlier been admitted to hospital from 8 to 10 January 2003 with unstable angina. He had suffered chest pain six months previously. The past medical history records '1 HD [?] - MI [myocardial infarction] 1995 [? 1996]' which may be a reference to another infarct in 1996, but I am uncertain. At the foot of the page there is a typed entry 'previous cath PC' and then a handwritten entry '1996'. It may be a reference to a catheter being inserted in 1996. While the position is unclear, on the basis of those medical records I conclude Mr Lawrence had another heart attack in March 1996.
An undated report records that a pacemaker implant was inserted on 31 October 2005 after Mr Lawrence collapsed.[654] Although it is not clear on the face of the report, I understand it is a report from Sir Charles Gairdner Hospital. Another similar report from the Department of Cardiovascular Medicine at Sir Charles Gairdner Hospital records that on 28 September 2012 a defibrillator implant was inserted after Mr Lawrence collapsed. In both 2005 and 2012 Mr Lawrence presented with ventricular tachycardia.[655]
Mr Lawrence was reviewed by a cardiology registrar, Dr Thompson, at Sir Charles Gairdner Hospital on 9 June 2010. Dr Thompson's report of 9 June 2010[656] records that the appointment was arranged following Mr Lawrence's implantable defibrillator check earlier in the year which demonstrated two episodes of ventricular tachycardia lasting seven seconds but terminated by anti-tachycardia pacing. It was noted Mr Lawrence had been seen in the cardiology clinic for a number of years. Dr Thompson reported that Mr Lawrence was doing well and did not have any symptoms of ischaemic heart disease, no chest pain or significant shortness of breath. Mr Lawrence's exercise tolerance was limited by knee pain for which he was awaiting surgery. There had been no syncopal episodes (fainting) and Mr Lawrence did not get palpitations. Dr Thompson did not think the brief episodes of ventricular tachycardia were too significant in the absence of progressive symptoms. A cardiogram was arranged to assess left ventricular function.
At the time of this review, Mr Lawrence was about to turn 66, which is when he would have retired.
The report of the consultant psychiatrist, Mr Wynn Owen, from RPH of 26 August 1998, also refers to Mr Lawrence's medical history of ischemic heart disease and a back injury and notes that 'he is in chronic pain'.[657]
When Mr Lawrence presented to the Swan Health Service on 25 May 1999 with anxiety, it was also noted that he had hurt his back and had gone to another general practitioner who prescribed Zoloft and Serapax.[658] He suffered adverse side effects from the medication.
When Mr Lawrence was seen by the occupational therapist, Ms Papanicolaou, in May 2003, she noted Mr Lawrence was also suffering physical health concerns in relation to heart problems (cardiac stenosis) and back problems and was afraid to go out.[659]
Dr Watson records a history that:[660]

[586]

It is also confirmed in the Sir Charles Gairdner Hospital pacemaker implant report of 31 October 2005.[664]
In a visit to his then general practitioner, Dr Davies, on 21 November 2006, Mr Lawrence reported that back pain continued to be a problem.[665] The North Street Medical Centre records record an attendance upon Dr Ten Seldam on 23 April 2010 in which Mr Lawrence reported he had had surgery to his right knee at the age of 26, although a query was raised about the age. The history Mr Lawrence provided was that he had banged his knee against a wool press and 'for the last two years he has had intermittent pain with occasional catching ... has real trouble on stairs'. An x-ray was ordered.[666]
Mr Lawrence next attended upon Dr Ten Seldam on 7 May 2010. The x-rays confirmed significant arthritis of the knee. He was told to avoid heavy lifting and placed on an RPH waiting list.[667] During an attendance upon another general practitioner at the medical centre, Dr Booker, on 9 August 2011, Mr Lawrence also reported a painful left knee. He was awaiting an orthopaedic appointment at RPH.[668] On 12 August 2011, Dr Booker appears to query whether Mr Lawrence needed any further cardiology tests.[669] On 15 August 2011, Dr Booker recorded that Mr Lawrence was suffering severe right knee pain, back pain, and could not sit for prolonged periods and Mr Lawrence felt that he was not capable of serving on a jury due to those issues as well as the depression from which he suffers.[670]
On 29 November 2011, Dr Bates, a consultant physician to the Department of Cardiology at RPH, wrote to Mr Gill of the Department of Orthopaedic Surgery at RPH in which he records Mr Lawrence's history of heart disease.[671] It was noted that Mr Lawrence had stable angina since 2003 after a drug-eluting stent was placed and that Mr Lawrence probably also had a defibrillator placed. Since that time, Mr Lawrence had done well and there had been no further episodes of coronary artery disease. However, Mr Lawrence was limited by hip and knee pain. The report was written in respect of proposed right knee replacement surgery. The surgical risk was assessed as moderate and the patient risk at moderate to high.[672]
On 12 November 2012, Mr Lawrence was diagnosed with chronic lymphocytic leukaemia which was stable.[673]
Ischaemic heart disease was diagnosed 28 May 2012.[674]
On 30 April 2013, Dr Martin noted Mr Lawrence was due to undergo a hernia operation on 10 May 2013.[675] It is unclear whether the surgery proceeded. Dr Martin also noted Mr Lawrence was due to undergo bilateral knee reconstruction on 10 June 2013. However, the surgery was performed on 7 August 2013.[676]
Over the next few months Mr Lawrence experienced, understandably, significant pain associated with the knee surgery as recorded in the records of the North Street Medical Centre.[677]
In May 2019, Mr Lawrence was hospitalised due to critical ischaemia in his left leg.[678] In June 2019, Mr Lawrence was diagnosed with acute coronary syndrome.[679] He underwent surgery to have a pacemaker implanted.[680] In 2019, Mr Lawrence also underwent surgery to amputate two of his toes.[681] He suffers from poor circulation in his legs. In 2019 he was admitted to RPH because of circulation problems in his legs and stents were implanted.[682]

[587]

Dr Watson is a general physician practicing from the St John of God Health Care Clinic at Subiaco. Since 1977 he has practiced in internal medicine. He is also an associate professor at the University of Notre Dame, Fremantle, Facility of Medicine. He is a highly regarded and respected general physician who has given evidence many time in this court. His qualifications and expertise are not challenged.[683]
Dr Watson was requested by Mr Lawrence's solicitors to review Mr Lawrence and provide a medical report for the purposes of these court proceedings. He met with and reviewed Mr Watson on 15 August 2019 and prepared a report to the solicitors dated 22 August 2019.[684] The solicitor's letter of 15 August 2009 to Dr Watson requesting his report enclosed a copy of a report of Dr Shub, dated 24 April 2019 and Mr Lawrence's historical records from RPH, Sir Charles Gairdner Hospital and the North Street Medical Centre.[685]
Dr Watson also prepared a separate report to Mr Lawrence's general practitioner, Dr Martin, dated 19 August 2019[686] which Dr Watson explained was a service he offered people he was reviewing for the purpose of a medico-legal report.[687] He wrote separately to Dr Martin to bring to his attention medical issues concerning Mr Lawrence.
Dr Watson explained that although there was a discussion between himself and Mr Lawrence about the sexual abuse, Dr Watson's main task was to look at the medical issues.[688] Although he had read the first report of Dr Shub which was provided to him by the solicitors in preparation for meeting with Mr Lawrence, the report was not something that influenced his report to any significant degree.[689]
Dr Watson, without speaking specifically about Mr Lawrence, was aware from other patients that he had seen that the level of emotional support provided to child migrants living in orphanages such as Clontarf and Castledare was distant, the diet was not good, they worked long hours and there was probably physical assault not just from senior people but others in the orphanages as well.[690]
In answer to a question asked by the solicitors he said:[691]
1. In your opinion, has the childhood sexual abuse and resulting mental health impacts contributed to any or all of Mr Lawrence's smoking, alcohol abuse and obesity?

[608]

In his report to the solicitors[698] in addition to Mr Lawrence's extensive psychiatric history which was documented in the medical records, Dr Watson noted Mr Lawrence had suffered from a number of other significant past medical problems which included:
- Three lumbar spine surgical procedures probably in the mid-late 1990s which included a laminectomy, a fusion and then a second fusion procedure with bone grafting performed by Dr Hardcastle. (The date is incorrect - the surgeries were performed in the mid-late 1980s.)
- A right knee total knee replacement with a good outcome in 2013.
- Cholecystectomy following acute cholecystitis and presumed bile duct obstruction in 2017.
- Removal of colon polyps in 2007 - 2008.
- Chronic lymphocytic leukaemia which has not required treatment other than being kept under observation by the RPH haematology department.
- Lymphadenopathy within the abdominal cavity.
- Type II diabetes requiring three monthly laboratory checks.
- Myocardial infarction due to occlusion of the right coronary artery in 1995 requiring admission to Sir Charles Gairdner Hospital.
- Progression of Mr Lawrence's coronary heart diseases leading to stenting of the left coronary artery at Sir Charles Gairdner Hospital in 2003.
- Insertion of a defibrillator at Sir Charles Gairdner Hospital in 2005 after an episode of collapse due to ventricular tachycardia.
- Further myocardial infarction of the left coronary artery.
- Large area of damage from the original myocardial infarct and damage on the anterior wall of the left ventricle from the second infarct with little reversibility.
- Peripheral vascular disease which was an active problem causing ischaemic damage to the left great toe and second toe requiring admission to RPH to attempt to open up the vessels below the left knee.
- Proximal disease in both legs.
- Pain in the left foot which was likely to require amputation of the great toe and second toe and possibly a left forefoot amputation.[699] (Mr Lawrence underwent surgical amputation of two toes on his left foot in 2019).[700]
Dr Watson also noted that Mr Lawrence had been admitted to RPH between 23 May 2019 and 4 June 2019 due to critical ischemia in the left leg.[701]
Dr Watson summarised Mr Lawrence's current health conditions as follows:[702]

[620]

Two consultant psychiatrists gave evidence, Dr Shub for Mr Lawrence, and Dr Piirto for the Christian Brothers.
Dr Shub diagnosed Mr Lawrence as suffering from Complex PTSD, a Major Depressive Disorder and Alcohol Abuse Disorder. He said these disorders were 'directly referable' to the sexual abuse.[706] Dr Shub said that had Mr Lawrence not been sexually abused he would not have developed the disorders.[707] Dr Shub noted that the sexual abuse and its sequalae had 'profoundly damaged' Mr Lawrence.[708]
Dr Piirto diagnosed Mr Lawrence with multiple conditions, chiefly related to Mr Lawrence's early life difficulties prior to his arrival at the orphanages. Dr Piirto diagnosed complex and chronic Unspecified Anxiety Disorder (to which she said the sexual abuse contributes) which includes limited PTSD phenomena; Panic Disorder; Agoraphobia; Social Anxiety Disorder; OCD; Alcohol Use Disorder (which she said had a less direct relationship with sexual abuse); Personality Disorder (which has a less direct relationship with sexual abuse); and Mild Neurocognitive Disorder (which had a minimal indirect relationship with sexual abuse).[709]
Dr Piirto said Mr Lawrence was 'predisposed to developing a psychiatric disorder' in the context of his early life experiences.[710] She concluded that it is 'quite possible, even probable' that he would have in any event developed a chronic unspecified Anxiety Disorder; 'quite probable' he would have had some personality vulnerabilities anyway had he not been sexually abused; and 'quite probable' he would have developed an alcohol use disorder anyway. She placed considerable weight on Mr Lawrence's report to her of his early childhood experiences in England and their impact on him.[711] She thought Mr Lawrence probably had a 'genetic pre-disposition' to developing a substance use disorder because he described multiple family members having problems with alcohol.[712] Dr Piirto expressed the opinion that many of the choices Mr Lawrence made as an adult 'were determined by personality, not driven by illness'.[713]

[623]

Dr Shub's experience and expertise were not challenged. I accept he is a highly qualified and experienced psychiatrist who was extremely well placed to give evidence regarding Mr Lawrence's psychiatric condition and its relationship to sexual abuse to which he was subjected as a child when he was resident at Clontarf and Castledare.
Dr Shub interviewed Mr Lawrence twice for the purpose of preparing his medical reports.
Dr Shub initially interviewed and assessed Mr Lawrence on 12 April 2019.[718] Dr Shub later provided a psychiatric report to Mr Lawrence's solicitors dated 24 April 2019.[719]
At the request of Mr Lawrence's solicitors Dr Shub provided a further, quite detailed, report dated 2 January 2020. That report responded to a report from Dr Piirto, dated 15 November 2019 prepared for the defendants' solicitors.[720] For the purpose of preparing the report, Dr Shub again interviewed Mr Lawrence on 30 December 2019.
In preparing that report, Dr Shub also interviewed Mr Lawrence's support person, Mr Kevin Chatelle, Mr Lawrence's former wife and Mr Lawrence's general practitioner, Dr Richard Martin. Neither Dr Martin or Mr Lawrence's former wife gave evidence at the trial. Mr Chatelle did give evidence but his evidence adds little to the issues I must address in these reasons. To the extent that Dr Shub refers to and relies upon his interviews with Mr Chatelle, Dr Martin and Mr Lawrence's former wife, in preparing his report,[721] I have ignored those parts of the report in the writing of these reasons for decision.
Finally, Dr Shub provided a further report to Mr Lawrence's solicitors dated 3 January 2020 requesting his further opinion in response to Dr Watson's report of 22 August 2019.[722]
On the basis of the history provided by Mr Lawrence (which Dr Shub accepted was reliable) during interview, which was over an hour, he judged Mr Lawrence to be a credible historian.[723] The information provided by Mr Lawrence was confirmed by a further review six months later. Dr Shub did not find any evidence of embellishment and thought, if anything, Mr Lawrence underreported his symptomology and had done that historically.[724] Dr Shub said that it was noted on multiple admissions and assessments in Mr Lawrence's medical history that he appeared to be superficial and there was a kind of cavalier facade. Dr Shub thought Mr Lawrence was a very stoical man who has developed a kind of a mask or a disguise as a way of not dealing with his mental and emotional state and underlying distress. In part, Mr Lawrence has managed his emotions, and distracted himself, by working hard and drinking excessively.[725]
Dr Shub thought Mr Lawrence gave a consistent history and had no reason to doubt his credibility. He did not think Mr Lawrence was embellishing or fabricating.[726]
As I have earlier explained,[727] Dr Shub's assessment of Mr Lawrence's reliability and credibility as a historian echoes my own views. Mr Lawrence generally gave evidence in almost a disinterested, detached and unemotional way. Even when describing the horrifying and brutal circumstances in which Brother Murphy first raped him Mr Lawrence talked in a matter-of-fact way. He summarised what had been done to him and talked in very broad or general terms. When he was asked to provide more details of the circumstances of the sexual abuse, or the nature of his psychiatric condition, he was unable, or reluctant, to provide much more detail. Self-deprecatingly he said he was not a very intelligent man. He said it was very hard for him to explain things.[728] A better description is that he is not a sophisticated man. It may be he was reluctant to fully relive the traumatic circumstances in which he was abused. That is understandable. His illiterate background and difficulty with finding appropriate words also probably impacted upon his ability to properly express himself. He was reticent, almost laconic when giving his evidence.
In my view he did underplay the seriousness of what has happened to him and the circumstances in which he was sexually abused. Throughout his recorded medical history it is also likely he has underplayed the traumatic circumstances of the sexual abuse perpetrated upon him and the impact of that abuse on him. He is a person who finds it difficult to verbalise what he has experienced and what he is experiencing. Although, as I have noted elsewhere, there are some inconsistencies in certain aspects of his evidence, and his recorded history, that generally does not impact upon or undermine the credibility and reliability of his evidence. I accept he is a credible and reliable witness as to the sexual abuse perpetrated upon him as a child and its impact upon him. Most of the abuse about which he gave evidence is admitted by the Christian Brothers. Those admissions reinforce Mr Lawrence's credibility.
In his report of 24 April 2019[729] which was confirmed by Dr Shub in evidence, Dr Shub expressed the opinion that Mr Lawrence had suffered from chronic sexual abuse which:[730]

[628]

Post-traumatic stress disorder was not recognised until 1980 which is when it was referred to in the DSM-3. Prior to 1980 there were not diagnoses of PTSD because it was not a recognised condition even though it existed.[734]
Prior to 1980 the predominant diagnosis from the medical records was antisocial personality disorder which is a highly unreliable diagnosis.[735] Since 1980 there has been no recorded history that Mr Lawrence has a personality disorder.[736] A personality disorder is not a condition that spontaneously resolves. It is long-lasting.[737]
Dr Shub explained that complex PTSD is a more severe form of PTSD which adequately captures the effect of chronic repetitive sexual abuse.[738] Although Mr Lawrence had an atypical presentation of complex PTSD,[739] he maintained his diagnosis because Mr Lawrence presented with symptoms of high arousal, combativeness, inebriation and aggression. Although Mr Lawrence's presentation was not entirely typical he had all of the core features of complex PTSD.[740] He presented with emotional dysregulation, impaired interpersonal functioning and lowered feelings of self-worth which Dr Shub described as 'very negative, nihilistic kind of symptoms'. The predominant presentation was Mr Lawrence's level of agitation and arousal which Dr Shub considered had been incorrectly diagnosed as a personality disorder[741] rather than the manifestations of an underlying complex PTSD.[742]
Dr Shub also diagnosed Mr Lawrence as suffering from a Major Depressive Disorder which he described as having taken a chronic course, with significant functional impairment and severe and chronic suicidal ideation.[743] Dr Shub said that in most cases of PTSD there is a depressive element which, in some situations, is part of the PTSD but in other situations, where the degree of mood disturbance is so profound, it warrants a second diagnosis of Major Depressive Disorder. In Mr Lawrence's case his mood disorder was so significant that he made a separate diagnosis of Major Depressive Disorder.[744]
Dr Shub also made a further diagnosis of alcohol use disorder.[745]
In both Dr Shub's experience and as is also set out in DSM-5, alcohol and drug abuse together with depression is commonly linked to PTSD.[746] Even if Mr Lawrence had said he did not drink, Dr Shub would have been quite suspicious given his work history and the context in which he grew up.[747]
Dr Shub regarded the alcohol use disorder as having also caused major difficulties and functional impairment for Mr Lawrence which has adversely affected his health and general functioning.[748]
Dr Shub expressed the view that Mr Lawrence remains extremely vulnerable and is likely to continue to experience residual post-trauma symptomology for the rest of his life, as well as fluctuating depressive symptomology.[749]

[638]

By the time Mr Lawrence left Clontarf he was suffering from complex PTSD.[753]
Dr Shub was also of the view that by the time he left Clontarf Mr Lawrence was also suffering from a Major Depressive Disorder based on his descriptions of feeling depressed, anxious, powerless, hopeless and a very nihilistic kind of description during the time he was at Clontarf and Castledare. The symptoms developed during a time when Mr Lawrence's life was developing and that development was corroded by what had happened to him and caused a mood disturbance which has persisted.[754] When he was at Clontarf and Castledare Mr Lawrence described himself as being unable to trust people and being constantly on guard. He felt different. He had difficulty interacting with people, partly because he could not trust people, including his peers. His self-esteem was damaged. He felt unable to establish or maintain any kind of relationships. Those feelings and thoughts continued into adulthood. He was in constant conflict with people. He clashed with employers and fellow workers. He struggled with authority, principally because the authority figures from his childhood, the Christian Brothers, had betrayed him. He physically fought with people, even when sober. He was constantly angry, often without knowing why. His marriage was marred by conflict.[755]
Dr Shub further reviewed Mr Lawrence on 30 December 2019 for the purpose of clarifying further aspects of his history and to assess his then current clinical state.[756] Dr Shub thought it was important to again meet with Mr Lawrence, partly for the purpose of ensuring the history he provided was consistent. It was also because the DSM-5 indicated that the diagnosis of personality disorder, which was referred to by Dr Piirto in her report, should be made on the basis of several meetings, not one.[757] He thought it was important to obtain a longitudinal picture and not a cross-sectional picture. He thought there was an issue with the reliability of the medical records and what conclusions you could draw from them. Often when Mr Lawrence attended hospital emergency departments he was combative, aggressive, intoxicated and probably not very pleasant to deal with. Dr Shub did not think the doctors were making an adequate psychiatric assessment in the setting of an emergency department and therefore usually Mr Lawrence was discharged soon afterwards. Accordingly, some of the diagnostic opinions were only based on brief assessments made in the chaotic atmosphere of an emergency department.[758]
However when longitudinal data was available, such as in the Swan View Health Centre records, diagnoses of PTSD were made and a personality disorder was not.[759] It highlights the importance of a longitudinal diagnosis which is not made from one sitting.[760]
Although in his report of 2 January 2020 Dr Shub does not refer to a report of a psychiatric registrar Dr Nguyen of 7 January 1999 from the Swan Adult Mental Health Centre (perhaps because it was not sent to him), Dr Nguyen, referring to Mr Lawrence having a long history of psychiatric involvement, says:[761]

[660]

He explained there were many current Australian studies trying to separate physical abuse from sexual abuse, and repeated sexual abuse, to try to identify which factors are most pathogenic. The conclusion is that childhood sexual abuse is the most pathogenic factor which was borne out by his experience working with survivors of child sexual abuse.[787]
He agreed that the conclusion the greater the severity of child sexual abuse, the greater the severity of the expected consequences, also applied to other forms of abuse such as emotional abuse, depersonalisation, and a lack of affection or emotional support. However, they are less significant than child sexual abuse.[788]
The ACE study did not distinguish between different forms of abuse.[789] Although his reference in his report of 24 April 2019 to increased adverse childhood experiences increasing negative outcomes was a reference to all forms of abuse, as was the reference to the 'cumulative trauma effect' causing a wide variety of negative outcomes,[790] he qualified his opinion by stressing that, in his experience, the type of brutal sexual abuse to which Mr Lawrence was exposed is by far the most pathogenic in causing adverse outcomes. He described repeated sexual abuse as having a cascading effect upon a person's global functioning.[791]
When he first interviewed Mr Lawrence, Dr Shub did not obtain a history of Mr Lawrence's childhood in England but he did in the second interview.[792] Part of the reason for the second interview was to clarify with Mr Lawrence information with which Dr Shub had been provided after the first interview.[793]
Mr Lawrence informed Dr Shub that he felt neglected and rejected by his mother who favoured her other children. He read in Dr Piirto's report that she made Mr Lawrence lie naked on the floor in the corner of a room but Mr Lawrence did not mention that to him.[794] Mr Lawrence was reticent in discussing his early childhood in England.[795] Although Mr Lawrence did not say he remains angry with his mother, Dr Shub thought it was understandable Mr Lawrence would be angry with his mother.[796]
Mr Lawrence told him that his mother held him by his feet and dropped him on his head on concrete on one occasion. Although Mr Lawrence did not tell Dr Shub that his mother had been cruel to him, Dr Shub read that from Dr Piirto's report. Mr Lawrence did not tell Dr Shub that when he was dropped on his head it was very painful and he wondered that she did not kill him. Although Mr Lawrence implied that he was excluded from the family by his mother, he did not specifically mention that his mother had a lot of fun with her other children but he was not allowed to be involved. Mr Lawrence did not tell Dr Shub that it was painful for him to recall his mother's neglect of him. He noted from Dr Piirto's report that when Mr Lawrence returned to England as an adult, he refused to see his mother even though his siblings tried to persuade him to do so.[797]
Having been informed of those matters, Dr Shub accepted that they were more significant than he originally thought. However he went on to stress that the major factor Mr Lawrence continually talked about was the sexual abuse, the fear and re-experiencing the trauma of the sexual abuse.[798] Mr Lawrence's early childhood experiences before Clontarf were not front and centre of Mr Lawrence's presentation. Nor, from the medical records, were they in his presentation to hospital emergency departments. There are no references to a problematic relationship with his mother which is significant in terms of Mr Lawrence's presentation.[799] Mr Lawrence's major presentation during the initial interview with him focused on his sexual abuse, particularly from Brother Murphy. He presented with symptoms of re-experiencing phenomena, intrusive thoughts about Brother Murphy, fears for his safety, depression, inability to connect with people, inability to maintain durable employment, self-loathing and sexual confusion. Although it is necessary to look at other factors, the overwhelming presentation was damage as a consequence of repetitive sexual abuse.[800]
Dr Shub concluded from his interviews with Mr Lawrence that the major factor in his psychopathology was the repetitive childhood sexual abuse. Dr Shub did not place significant weight on Mr Lawrence's early dysfunctional family experience. He contrasted Mr Lawrence's presentation with many children and adolescents, who despite coming from similar backgrounds, have managed well but who have not been subjected to child sexual abuse.[801]
Dr Shub accepted that to send small unaccompanied children to a new country would impact upon a child's development and have a negative effect on them. However that may be mediated by exposure to nurturing and a structured and caring environment. It is one factor but not the predominant factor. If Mr Lawrence had been placed in a caring, supportive, familial environment with structure and protection, it is probable Mr Lawrence would have fared considerably better.[802]
Dr Shub agreed that the bus accident in which Mr Lawrence was involved while he was at Clontarf in which one child died and others were seriously injured was an adverse factor in Mr Lawrence's childhood.[803] However, if the accident occurred when Mr Lawrence was aged 11, it occurred after the initial sexual abuse.[804]
Mr Lawrence did not talk about suffering anxiety associated with being physically abused. Mr Lawrence said that his heart started racing whenever he saw Brother Murphy which was the main cause of his anxiety and distress.[805] Although Mr Lawrence did not mention a racing heart when he saw Brother Doyle, Dr Shub accepted that if that happened it was a sign of anxiety and distress.[806]
Mr Lawrence never spoke about Brother Doyle randomly and regularly beating him with a cane, but Dr Shub accepted that if that happened it was another adverse factor in Mr Lawrence's overall development.[807]
Dr Shub agreed that to cast a young 16 year old out onto the street with a poor education, few assets and no support would be a poor indicator for his employment history.[808]
Dr Shub also agreed that to be sexually abused by a farmer after he left school as a 16 year old would have caused some damage to Mr Lawrence's psychiatric health. However, Mr Lawrence's sexual confusion, difficulty with relationships and low self-esteem were major factors predisposing him to such an incident of sexual abuse.[809]
Dr Shub agreed that intrusive thoughts about the abuse which have persisted is an important factor for the diagnosis of PTSD.[810]
Dr Shub disagreed that the absence of such a history would cause him to have some doubt about his diagnosis. Mr Lawrence gave him a history of nightmares and intense psychological and physiological distress which was a part of experiencing intrusive thoughts.[811] The absence of intrusive thoughts does not prevent a diagnosis of PTSD being made.[812] However you would need evidence of re-experiencing phenomena in conjunction with avoidant phenomena, negative cognitions and hyperarousal before you could make the diagnosis of PTSD.[813] The history of those symptoms was confirmed by Mr Lawrence's medical records, particularly the Swan Health Medical Service records.[814] Dr Shub did not just rely upon the medical records for his diagnosis of PTSD. He also relied on his clinical experience and his mental status examination of Mr Lawrence.[815]
In relation to Mr Lawrence's abuse of alcohol, Mr Lawrence reported that he drank to get rid of the intrusive repetitive thoughts about the sexual abuse. He did not give a history of drinking to deal with his unfortunate familial background.[816]
Dr Shub repeated that all of the other negative factors in Mr Lawrence's life including childhood abandonment, parental abuse, emotional deprivation and institutional physical abuse were relevant to Mr Lawrence's development. However, they were not as powerful or as pathogenic as the sexual abuse.[817] When he spoke with Mr Lawrence, the content of his re-experiencing phenomena, the torment, the ruminative thoughts and the intrusive thoughts were exclusively connected with being raped. The dreams were connected with being raped which is a very important predictor of the nature of the 'pathological insult'.
Mr Lawrence did not report having dreams about his mother or being neglected or being on a boat. His nightmares were exclusively connected with being raped and being in terror of being raped.[818] His conclusion is based on the history he took from Mr Lawrence, and from the reported history, and from his experience in assessing and treating childhood sexual abuse victims. The literature is helpful to support an opinion by reference to statistics but he did not rely solely on papers or literature.[819] He did not discount all the other adverse factors from Mr Lawrence's childhood and background but the most significant factor was the sexual abuse which caused a catastrophic psychiatric injury.[820]
All of those other factors gave rise to the potential that without anything further there might have been some sort of psychiatric injury, but the sexual abuse as a child superimposed on those factors made it almost inevitable that Mr Lawrence would suffer psychiatric injury.[821]
Dr Shub attributed Mr Lawrence's illiteracy to the child sexual abuse because Mr Lawrence was fearful, anxious, unable to concentrate, unable to recall information, unable to grasp what he was being taught because his teacher was the rapist.[822]
Dr Shub described Mr Lawrence as suffering from a cognitive deficit because he was unable to process, recall and understand information because of anxiety which was distracting him or he was suffering from depression which affected his functioning.[823]
In re-examination when Dr Shub was asked to explain what he meant when he said the various other traumatic factors in Mr Lawrence's life were not as powerful or as pathogenic as the sexual abuse, he responded:[824]

[676]

She then proceeded to give what amounted to a spirited defence of her opinion.[842] When an objection was made that she was reading from notes which had not been discovered, she attempted to explain what she had done, speaking over counsel and myself.[843] The impression I gained is that Dr Piirto was too eager to advance the case for the Christian Brothers by advocating a position that the childhood sexual abuse suffered by Mr Lawrence had reduced relevance to the cause of his psychiatric condition compared to other factors in his life.
That impression was reinforced when Dr Piirto, during cross-examination, was asked whether she was aware of the extent of the sexual abuse suffered by Mr Lawrence. She relied upon what she was told by Mr Lawrence, and some statements provided to her, as to the extent of the sexual abuse. She accepted at least that Mr Lawrence had been abused by Brother Murphy, but could not be specific about whether there were any other incidents of child sexual abuse because of inconsistencies in what she was told by Mr Lawrence.[844] She spent some time in her report referring to the pleadings and documentation provided to her and noting inconsistencies in the documentation and the pleadings.[845]
She had not been made aware that most of the pleaded child sexual abuse had been admitted by the Christian Brothers.[846] She was not aware that Brother Murphy had digitally penetrated Mr Lawrence on repeated occasions. She was not aware Mr Lawrence had been anally raped by Brother Murphy seven or eight times at Castledare in 12 months as opposed to one time.[847] She was not aware that Mr Lawrence had been further anally raped and digitally penetrated by Brother Lawrence another eight times in the space of 12 months at Clontarf. She was not aware of the repeated number of times Brother Murphy had anally raped Mr Lawrence.[848] She was not aware Brother Murphy had also sexually abused Mr Lawrence by masturbating Mr Lawrence and fondling his genitals.[849] She was not aware of the extent of the sexual offending perpetrated by Brother Marques and Brother Angus.[850] Nor was she aware Mr Jackson had performed oral sex on Mr Lawrence twice.[851] She was not aware that Brother Doyle caned Mr Lawrence on his bare bottom while questioning whether he had been involved in sexual activity.[852]
She agreed that the nature and extent of those incidents of sexual abuse was in the extreme range of child sexual abuse which was far more severe than that which had previously been described to her.[853] She accepted that in most cases child sexual abuse is cumulative, meaning that the more sexual abuse that a child is exposed to, the greater the impact it is likely to have.[854] She agreed with Dr Shub's observation that 'one episode of anal rape inflicted upon a child is sufficient to generate significant major lifelong psychopathology'.[855]
Having been informed of the full nature and extent of the sexual abuse suffered by Mr Lawrence did not cause Dr Piirto to modify any of her opinions expressed in her report because, she said, she accepted that the sexual abuse was extensive, she just did not have specific figures. She explained:[856]

[678]

Nor had Dr Piirto been aware that Mr Lawrence initially suffered from anal bleeding after he was first raped by Brother Murphy and that the bleeding was exacerbated by repeated anal rapes and continued over an extended period of years. However, that did not alter her opinion.
Dr Piirto accepted that 15 or 16 incidents of anal rape suffered by Mr Lawrence was sufficient to generate significant major lifelong psychopathology.[857]
Dr Piirto's insistence that she was not prepared to modify any of her opinions in her report despite the concessions she made that she was not aware of the full nature and extent of the sexual abuse suffered by Mr Lawrence caused me to have further reservations about her impartiality and independence. The impression I have is that Dr Piirto unquestioningly accepted that Mr Lawrence's reports of his early childhood experiences in England were reliable because it supported her opinion that those experiences were a major cause of his psychiatric illness. She did not question the reliability of Mr Lawrence's memory about that period of his life. I have earlier referred to the confusion in Mr Lawrence's evidence and about what he could actually independently remember about that period, or what he has come to believe on the basis of what he was told by the nuns when he was placed in an orphanage in Birmingham.[858]
I have also found that it is understandable Mr Lawrence harbours feelings of anger towards his mother because he was sexually abused. If she had not abandoned him and placed him into an orphanage in Birmingham, he would not have been brought to Australia and would not have been sexually abused. Mr Lawrence described how distressed he was after he was first raped by Brother Murphy, how lonely he felt and that he missed his mother. It is entirely understandable a 9 year old boy who had just been abused in the way he had would miss his mother, irrespective of how she had treated him. It is also understandable how over time Mr Lawrence might come to blame his mother for what had happened to him.
In my view, it is likely that a large part of Mr Lawrence's feelings about his early childhood in Birmingham, whether he has any independent recollection of those times or has come to believe how he was treated because of what he was told by the nuns, is influenced by the sexual abuse he suffered while in the care of the Christian Brothers.
I have already expressed my reservations regarding Dr Piirto's evidence that Mr Lawrence was distressed when he was relating his early childhood experiences to Dr Piirto. I am also of the view Dr Piirto has not given any, or any sufficient, regard to Mr Lawrence's reluctance or inability to properly express the horror of the sexual abuse perpetrated upon him when she relies upon his self-reported history in concluding the sexual abuse had less impact upon his psychiatric condition than did the early childhood experiences. The horror of what Mr Lawrence endured cannot be dismissed as lightly as Dr Piirto seemed to dismiss it. The traumatic early childhood experiences do not compare to the circumstances in which Mr Lawrence was repeatedly sexually abused over an extended period of years while in the care of the Christian Brothers.
In my view these matters undermine Dr Piirto's opinions.
Dr Piirto emphasised that in reaching a diagnosis the important thing is not just the traumatic experiences, it is also the subsequent symptomology.[859]
Mr Lawrence told her it was not just sexual abuse, it was the physical abuse which impacted upon him and he specifically talked about Brother Doyle, calling him cruel and a mongrel.[860] Mr Lawrence said there were other Brothers who would occasionally hit him with canes, but Brother Doyle was the main person that caused him harm.[861]
Dr Piirto considered that because the assaults by Brother Murphy were so significant, the other sexual abuse perpetrated by other Brothers were less profound, which is why Mr Lawrence did not recall how he felt when molested by the other Brothers.[862]
When Dr Piirto prepared her report, she did not recall, understandably, that she had actually reviewed Mr Lawrence in the emergency department of RPH on 9 September 1994 when she was a senior psychiatric registrar at RPH.[863] She has no independent recollection of having seen Mr Lawrence in 1994.[864] She has reviewed her notes from that time since preparing her report.[865] Dr Piirto referred to the history she recorded in 1994 that Mr Lawrence's mother was very cruel to him from which she concluded that because he was still referring to that history when she reviewed him in November 2019, it was an important part of his history.[866] Mr Lawrence also reported the history of being sexually abused by the Christian Brothers at Castledare.[867]
Dr Piirto also explained that in the emergency department the doctors do not take extensive histories. Their role is to work out how to best help a patient.[868] That observation supports Dr Shub's evidence when he says that an explanation for Mr Lawrence being misdiagnosed over the years following his admissions to hospital emergency departments, which are chaotic environments, is in part because there is not the time to take a detailed history and properly assess the history.[869]
While Dr Piirto agreed that Dr Baker in his report of 25 February 2004[870] refers to a 'long history of recurrent depression', she was of the view that that must be noted in the context where Mr Lawrence was suffering from chronic anxiety related to a myocardial infarction. He was worried about having another heart attack. Therefore, Dr Piirto did not regard that as evidence supporting a conclusion that Mr Lawrence had presented with major depression for decades.[871] When she assessed Mr Lawrence he did not describe features of major depression. Nor does she consider there is any support in the clinical notes that he has described symptoms of major depression at any time. Dr Piirto maintained her opinion that Mr Lawrence has not at any time presented with chronic major depression.[872]
This was another instance which caused me to have reservations about Dr Piirto's impartiality. She seemed determined to advocate the case for the Christian Brothers by identifying any other possible causes of Mr Lawrence's anxiety and downplaying the impact of the child sexual abuse on Mr Lawrence's condition, even though she was not aware of the severity of the sexual abuse.
In cross-examination, Dr Piirto was asked about the note she made when she examined Mr Lawrence on 9 September 1994 that there was 'some evidence of prolonged dysthymia'.[873] Dr Piirto also recorded that Mr Lawrence showed 'some features of depression, eg diurnal variation'. That is, symptoms occurring daily.
By reference to the DSM-5 criteria,[874] Dr Piirto was cross-examined about the meaning of the word 'dysthymia' and its relationship to a depressive disorder. She reluctantly 'supposed' that when a psychiatrist uses the word ' dysthymia' they could also use the words 'persistent depressive disorder'.[875] She was further taken to the passage under the heading 'Diagnostic features' in the DSM-5 which states:[876]

[680]

Dr Piirto said that Mr Lawrence did not describe that. When she was then asked whether from her note that Mr Lawrence had some evidence of prolonged dysthymia, she had formed a clinical impression that he had signs of prolonged persistent depressive disorder, initially she said yes and then no.[877] Even though she had no memory of the consultation with Mr Lawrence in 1994[878] she then started to qualify what she had recorded.[879] In her evidence-in-chief Dr Piirto said that 'dysthymia' meant 'disturbed mood which could be multifactorial in the context of his marriage and other things that he was describing including his wife's son moving in with them'.[880] When she was asked about her shorthand initials for the word 'initially' and then in her notes where she referred to there being nightmares about being trapped in a mine, Dr Piirto volunteered, without being asked, that there was no description of any intrusive re-experiencing phenomena and then started to explain that it was 'probably an important negative not to have included' before she was interrupted by counsel.[881]
She described the precipitating event for Mr Lawrence's admission to hospital as being his wife's son moving in with them.[882]
Dr Piirto was also asked about the medication she prescribed for Mr Lawrence, Fluoxetine, which she confirmed was an antidepressant medication. With little prompting, Dr Piirto sought to emphasise the fact that she had prescribed antidepressant medication did not mean she was treating Mr Lawrence for depression. She explained antidepressant medication can be prescribed for a number of conditions. She prescribed it because of the panic symptoms that Mr Lawrence described he had been experiencing.[883]
My impression was that Dr Piirto considered her observations and opinion in September 1994 was consistent with, and supported, her opinion in her November 2019 report.[884] She diagnosed Mr Lawrence as having an adjustment disorder with panic attacks and some features of depression and a vulnerable personality.[885] She described an adjustment disorder as the development of emotional behavioural concerns in the context of identified stressors and someone as presenting with clinically relevant symptoms.[886] Dr Piirto then went on to explain that she did not diagnose a personality disorder on assessment because she was seeing Mr Lawrence in the context of the emergency department and made the decision to send him to the ward where he would be assessed more thoroughly. However, she considered he had a vulnerable personality because he had maladaptive coping mechanisms. She assumed that she considered the drug overdose to reflect his poor coping skills where he had had a fight with his wife and had a few beers and felt panicky and then overdosed.[887]
Although she was not asked, either in her evidence-in-chief or in cross-examination, whether the notes of her review of Mr Lawrence on 9 September 1994 changed, or impacted upon, her opinion that Mr Lawrence did not have a history of depression, my clear impression was that she maintained her opinion that there was no history of depression. This is another instance which causes me to have reservations about Dr Piirto's impartiality. I am satisfied from her own notes of her examination of Mr Lawrence on 9 September 1994 in RPH she was satisfied the presentation and symptoms were consistent with a history of depression. I also note that later, in re-examination, Dr Piirto referring to all of the matters in Mr Lawrence's life and noting that he was often admitted to hospital at times of heightened marital difficulties, which was adding to the complexity of his profile, which included abuse of alcohol which she said was 'related with anxiety and depression',[888] is apparently a concession that Mr Lawrence's abuse of alcohol was related to symptoms of anxiety and depression. Dr Piirto also said that all of the history in 2003 concerned Mr Lawrence's wife and his abuse of alcohol and living in boarding houses which was 'going to reinforce his anxiety and depression'.[889] However, she thought it was too simplistic to conclude that Mr Lawrence had two disorders stemming from childhood sexual abuse.[890]
Dr Piirto rejected Dr Shub's diagnosis that Mr Lawrence had suffered from Major Depressive Disorder of significant severity throughout his life.[891] Dr Piirto commented that:[892]

[682]

In his subsequent report of 6 January 2020[893] Dr Shub took issue with Dr Piirto's comment that a Major Depressive Disorder has never been nominated as a discharge diagnosis.[894] He said there were multiple references made to depressive symptoms and in particular, referred to the handover summary report by psychiatrist, Dr Baker, from the Swan Adult Mental Services of 18 July 2004, which records a diagnosis of 'recurrent Major Depressive Disorder with chronic dysthymia'.[895] Dr Shub further identified various entries in the medical records where there are references to depression or depression related symptoms.[896]
In cross-examination Dr Piirto explained that 'dysthymia' is the disturbance of mood which can be associated with depression or occur at the same time as depression.[897] After she was taken through the entries in the documentation identified by Dr Shub, Dr Piirto agreed Dr Shub had correctly quoted the passages from the documentation but did not accept the documentation demonstrated a history of Mr Lawrence suffering from either depression or symptoms relating to depression.[898] However, in re-examination Dr Piirto clarified some of the entries referred to by Dr Shub in the medical records were not entirely accurate. The Heathcote Hospital record of 12 June 1975 noted that Mr Lawrence 'inconsistently' exhibited 'some' signs of depression.[899] Dr Shub's quote left out the words 'inconsistently' and 'some'.[900]
Dr Piirto next referred to Dr Shub's comment regarding the Graylands Hospital report of Mr Lawrence's admission on 5 June 1977.[901] Dr Piirto said the reference in the medical report was in the context of a pending marriage and when Mr Lawrence was conflicted about his homosexuality.[902] It seemed to be suggested by Dr Piirto that Mr Lawrence's self-referral because of depression must be seen in the context of his pending marriage, not because he had been depressed all his life. I do not accept that is an accurate reading of the Graylands Hospital report. The entry under the heading 'Presentation' reads:

[684]

In my view, that is a clear reference by Mr Lawrence to the sexual abuse suffered by him when he was at Clontarf and Castledare and that he has been depressed since then because of that abuse.
Dr Piirto next referred to Dr Shub's reference to the report of the psychiatric superintendent of Graylands Hospital dated 4 December 1979 in which there is a reference to past admissions to Heathcote Hospital for depression and where depressive feelings were described.[903] Dr Piirto pointed to the comment in the hospital report that Mr Lawrence showed no 'obvious signs of major psychotic or mood disorder'[904] which Dr Piirto said showed that the superintendent was not upholding a depressive disorder even though Dr Shub gave it as an example of depression.[905]
In my view, Dr Piirto overstates the relevance of Dr Shub's reference to that report. All that Dr Shub was doing was noting what he regarded as frequently references in the historical medical documentation to reports of depression or depressive symptoms, which he regards as establishing a foundation for concluding that Mr Lawrence suffers from a Major Depressive Disorder even though that may not have been the diagnosis made by earlier doctors. It is Dr Shub's opinion that although there is a consistent history of symptoms being reported, which are consistent with and support a diagnosis of PTSD and Major Depressive Disorder, Mr Lawrence's condition has not been correctly diagnosed, in part because of Mr Lawrence's often violent presentation when affected by alcohol and drugs and when there was not the time to make a properly considered diagnosis. Dr Shub also points to the lack of a formally recognised psychiatric diagnosis of PTSD until the 1980s.
Dr Piirto also made the point that when Mr Lawrence was admitted to Heathcote Hospital in 1979 for a period of 26 days, even though it was acknowledged he was exhibiting some signs of depression, no diagnosis of depression was made.[906]
Dr Piirto further emphasised that even though in a report of 13 April 1989 Mr Lawrence's then treating general practitioner Dr Kaczmarczyk recorded a diagnosis of 'bipolar psychiatric disorder - manic depression' Mr Lawrence was never treated for either of those conditions. Therefore the diagnosis in the completed medical form was based on erroneous information.[907]
Dr Piirto next referred to Dr Shub's reference to a report of consultant psychiatrist, Dr Stampfer, of 20 November 1995, in which there is a reference to Mr Lawrence having an extensive past psychiatric history which sounded liked a bipolar or schizoaffective disorder.[908] Dr Piirto noted that despite having made that comment, Dr Stampfer concluded that on examination Mr Lawrence showed no evidence of active depression.[909]
Dr Piirto next referred to the comment in Dr Leys' report of 10 July 1997 which referred to a lifetime history of anxiety and depression and that Mr Lawrence had bipolar affective disorder, which was not consistent, Dr Piirto said, with the fact that Mr Lawrence was not taking any medication.[910]
Dr Piirto also said that the reference in a report of Dr Wearne of the Swan Adult Mental Health Service on 18 December 1998 to Mr Lawrence describing himself as being chronically depressed, is not a basis for a clinical diagnosis of depression.[911] In my view Dr Shub did not equate Mr Lawrence's self-description to a medical diagnosis of clinical depression. All that Dr Shub was doing was extracting from the historical medical records what he regarded as a consistent and longstanding history of reports of depression or symptoms associated with depression. The point being made by Dr Shub was that there was not a longitudinal analysis by the subsequent treating medical or consultant psychiatrists when later making their diagnosis that Mr Lawrence was suffering from different conditions, such as a personality disorder. It is Dr Shub's opinion that historically the doctors had misdiagnosed Mr Lawrence's conditions, in part because they did not have the time to properly assess him.[912]
Dr Piirto criticised Dr Shub as being selective.[913] Dr Piirto also criticised Dr Shub by referring to a report of an occupational therapist from Viveash Rehabilitation Centre dated 10 May 2003 which refers to a diagnosis of PTSD and recurrent MDD/current dysthymia[914] when, in his report, he also criticised the diagnosis of personality disorder as being unsophisticated, referring to the diagnosis of a psychologist, Ms Willis, who is not trained to make good psychiatric diagnoses.[915] Again, in my view, all that Dr Shub was doing was noting entries in the medical records to depression or PTSD, in response to Dr Piirto's conclusion that there was no evidence of a history of depressive illness based on her review of the medical documentation. Dr Shub was not saying that just because there were references to depression in the medical records it followed that a diagnosis of depression ought to have been made. However, it was one of the factors taken into consideration by Dr Shub, together with his clinical examination of Mr Lawrence on two separate occasions, his familiarity with research literature and also based on his experience as a child and adolescent psychiatrist dealing with the impact of child sexual abuse, which lead him to form his opinion that Mr Lawrence has, from an early age, suffered from PTSD and depression, caused by the severe sexual abuse to which he was subjected as a young boy.
Although in her report Dr Piirto denies any link between the sexual abuse and poor education[916] she conceded that there was a direct connection between Mr Lawrence's child sexual abuse and the fact that it contributed to him being illiterate.[917] She was not aware at the time she wrote her report that the main abuser, Brother Murphy, was Mr Lawrence's teacher during the time he abused him over about two years.[918] She agreed that being taught by the people who were abusing you would have had an effect on Mr Lawrence's literacy outcomes.[919]
In her report Dr Piirto commented that the history indicated Mr Lawrence went onto a disability pension for a back injury, not because of a psychiatric condition.[920] Later in her report she reiterated that Mr Lawrence went onto the disability pension in 1990 because of his back complaints.[921] She also said in her report that there was no suggestion Mr Lawrence was incapacitated by a psychiatric illness.[922] Dr Piirto was then taken to a medical report prepared by Dr Kaczmarczyk of 13 April 1989 in support of Mr Lawrence's application for an invalid pension.[923] In that report, Dr Kaczmarczyk includes as a part of his diagnosis that Mr Lawrence was suffering from a 'bipolar psychiatric disorder - manic depressive'. Dr Piirto did not agree with that diagnosis and said the facts upon which the diagnosis was made were wrong.[924] She was then taken to a 'combined impairment assessment' completed by Dr Lee on 10 May 1989 again supporting Mr Lawrence's claim for an invalid pension. Dr Lee identified three disabilities including 'bipolar affective disorder' for which he gave an impairment rating of 10%.[925] Dr Piirto also took issue with that diagnosis.[926]
Dr Piirto was next taken to a medical report of Dr Fry of 25 July 1997[927] which describes Mr Lawrence's primary medical conditions as 'lifelong psychiatric treatment - schizoaffective disorder, underlying dysfunctional childhood factors'.[928] Dr Piirto was also taken to a Department of Human Services document which records that on 13 August 1997, Mr Lawrence's medical certificate information listed his medical conditions as a psychological psychiatric disorder.[929]
Having been taken to that documentation, when Dr Piirto was asked whether she accepted that a part of the reason why Mr Lawrence was on the disability pension was because of psychiatric injury, she said she found it hard to.[930] She later, however, accepted that by reference to Dr Lee's report which assessed Mr Lawrence as having an impairment rating of 10% for bipolar affective disorder and 10% for osteoarthritis of the lumbar and cervical spines, that the reason Mr Lawrence was on the disability pension as at 1989 was at least partly because of his psychiatric condition.[931] When asked whether she accepted that the psychiatric condition was at least as significant as the back condition, Dr Piirto still resisted agreeing with the proposition, saying that report was referring to impairment, not incapacity.[932]
Any concessions made by Dr Piirto when confronted with documentation inconsistent with her comments or opinions expressed in her report were only very grudgingly made.
In cross-examination, Dr Piirto accepted that PTSD, depression and alcohol problems are amongst the most frequent consequences of child sexual abuse compared to other disorders referred to in a research report co-authored by Molnar and others,[933] such as anxiety disorders.[934] She agreed that the rates of PTSD could possibly be even higher for men who were raped multiple times, although she qualified that by saying it was not a cumulative thing.[935]
Dr Piirto agreed that long term child rape or repeated child rape has worse consequences than isolated child rape.[936] She also agreed that a child who was raped by a custodian or guardian resulted in higher odds of PTSD than if the rape was perpetrated by a stranger when chronicity was controlled.[937] Finally, she agreed that child rape has worse consequences than does child molestation.[938]
Dr Piirto concluded that there was a direct relationship between Mr Lawrence's experiences of sexual abuse and his complex Unspecified Anxiety Disorder, but it was not the only causal factor.[939] There was a less direct relationship between Mr Lawrence's experiences of sexual abuse and the alcohol disorder and personality disorder. It is those disorders which have contributed most to Mr Lawrence's functional impairment throughout his life.[940] There was a minimal indirect relationship between the sexual abuse and Mr Lawrence's probable mild neurocognitive disorder, which has increasingly contributed to functional impairment in recent years.[941]
Dr Piirto concluded that the sexual abuse contributed to less than 50% of the 'causal load of any compromise or incapacity which has been evident at different times, and in recent years, this has been considerably less than 50%'.[942]
Dr Piirto considered that it was probable Mr Lawrence would have presented with a chronic Unspecified Anxiety Disorder as a result of his early life experiences prior to leaving England. She also thought there was a probable pre-disposition to developing an alcohol use disorder because of his family history and because it was not uncommon for people in the 1960s and 1970s, particularly those involved in labouring work, to abuse alcohol.[943]
During her evidence-in-chief, Dr Piirto explained how she arrived at that percentage calculation:[944]

[687]

I reject Dr Piirto's opinion that Mr Lawrence suffers from an unspecified anxiety disorder and personality disorder. That diagnosis is not confirmed by any other doctors in the historical medical records since PTSD was recognised by the medical profession in DSM-3 in 1980.[948] Dr Piirto conceded there were not any doctors who had diagnosed Mr Lawrence as suffering a personality disorder since 1980.[949]
I reject her opinion that many of the choices Mr Lawrence made during his life were determined by his personality and not by his illness.[950] As I have later expressed,[951] in my view the course of Mr Lawrence's life, and the psychiatric illnesses suffered by him, were inevitably determined by the child sexual abuse.
I also reject Dr Piirto's opinion that Mr Lawrence does not suffer from PTSD or major depression. I accept Dr Shub's opinion Mr Lawrence does suffer from those conditions and has suffered from those conditions since he was at Clontarf after he was sexually abused. In my view Dr Shub's qualifications and experience placed him in a better position to give evidence about the nature of Mr Lawrence's psychiatric condition and its relationship to the child sexual abuse to which he was subjected by the Christian Brothers. His experience in the areas of child development, adolescent and adult psychiatry over many years places him in a better position to give evidence about these matters. Dr Piirto is not a child and adolescent psychiatrist. She has not undertaken the additional intensive two year minimum training programme required to obtain formal qualification as a child and adolescent psychiatrist referred to by Dr Shub.[952] Dr Piirto accepted she had worked primarily with adults and had only limited training in child and adolescent psychiatry which she kept learning. I was unimpressed with her explanation of her approach to diagnosis by trying to visualise where a patient has been as a child and then research child and adolescent psychiatry in the context of the patient she is reviewing.[953] I do not believe she has sufficient training and experience to fully understand the impact of sexual abuse during childhood on a person's life into adulthood.
Dr Shub presented as a suitably impartial and independent witness for the purpose of assisting the court. He conceded when he first reviewed Mr Lawrence he was not fully aware of Mr Lawrence's dysfunctional early childhood in England. Further, once he was informed about that background, he willingly conceded they were matters of relevance and significance in the cause of Mr Lawrence's psychiatric condition. However, he maintained the overwhelming and dominant cause of Mr Lawrence's psychiatric condition was the brutal and severe sexual abuse to which he was subjected as a child.
In my view, it is almost a matter of common sense that a person who experienced the severity and brutality of the sexual abuse I have found Mr Lawrence experienced, would suffer severe and chronic psychiatric injury which would impact upon them for the rest of their lives. Yet, when confronted with the full extent of the sexual abuse suffered by Mr Lawrence, Dr Piirto continued to downplay its significance. As I have earlier explained, the horror of the sexual abuse to which Mr Lawrence was subjected as a young boy over an extended period of years does not compare to any maltreatment to which he was subjected by his mother as a young child. It is understandable, having been subjected to the sexual abuse, Mr Lawrence would be angry with his mother and perhaps blame her for causing him to be placed into the care of the Christian Brothers during which he was sexually abused.
Dr Shub's diagnosis of PTSD is supported by a similar diagnosis made by other doctors who have treated Mr Lawrence over the years, including Dr Chadwick,[954] Dr Banerjee,[955] Dr Baker.[956] In making his diagnosis of PTSD, Dr Shub used three screening tools to assess Mr Lawrence, each of which supported the PTSD diagnosis.[957] Dr Piirto did not use any screening tool when assessing Mr Lawrence. As I have mentioned, since 1980, 40 years ago, there is no other doctor who has diagnosed a personality disorder. Dr Piirto also agreed that Mr Lawrence has features of PTSD and that he had demonstrated and satisfied a large number of the criteria for the diagnosis of PTSD.[958] However she did not accept that those matters were connected to the child sexual abuse.
Dr Shub's opinion about the importance of a longitudinal diagnosis to confirm Mr Lawrence has suffered from depression is supported by the opinion of Dr Nguyen of 7 January 1999[959] to which I have earlier referred.[960]
I am also satisfied that Dr Shub's diagnosis of a Major Depressive Disorder is supported by various references in the historical medical documentation to depression and dysthymia, including by Dr Piirto herself when she saw Mr Lawrence in September 1994.[961]
Dr Shub's diagnosis is supported by and consistent with disorders most commonly associated with child sexual abuse explained in the Molnar study.[962] Dr Piirto's diagnosis does not appear in the study.
As I have earlier discussed, although Dr Piirto conceded that she was not aware of the severity of the sexual abuse suffered by Mr Lawrence, and though agreeing in cross-examination that the cumulative impact of multiple impacts of sexual abuse exposes a child to greater harm, and despite accepting that the sexual abuse suffered by Mr Lawrence was in the extreme end of the range of child sexual abuse, inconsistently, she later gave evidence that it made no difference whether Mr Lawrence had been sexually abused by three people or 30 people.[963] She refused to accept that the child sexual abuse was the dominant factor which has caused Mr Lawrence's lifelong psychiatric condition, whatever the diagnosis. Referring to the history she took from Mr Lawrence, in which he did not complain about the frequency and severity of the sexual abuse and its impact upon his functioning, she concluded he was therefore not that greatly affected by the abuse.[964]
I have earlier found that in his evidence Mr Lawrence downplayed the severity of the sexual abuse to which he was subjected and the impact of that abuse upon him. As I have explained that view is supported by the opinion of Dr Shub.[965] I do not accept that because Mr Lawrence may not have fully described to Dr Piirto the impact of the sexual abuse upon him that it follows he was not greatly affected by the abuse. In my view it is because of the impact of the abuse upon Mr Lawrence that he has difficulty talking about it.
Dr Shub gave his evidence in a considered and measured way. His opinion, in my view, was consistent with the historical medical records.
I accept Dr Shub's opinion that Mr Lawrence suffers from chronic PTSD and a Major Depressive Disorder caused by the child sexual abuse he suffered by the Christian Brothers. I accept his opinion that prior to 1980 the predominant diagnosis for the medical records was an antisocial personality disorder which is an unreliable diagnosis and that since 1980, when PTSD was formally recognised by the medical profession, a diagnosis of a personality disorder has not been made.
I accept Dr Shub's opinion that Mr Lawrence has also suffered from an alcohol use disorder which is caused by the child sexual abuse. That disorder has caused Mr Lawrence to suffer from lifelong abuse of alcohol which has impacted upon his ability to function on a daily basis.
I accept Dr Shub's opinion that the psychiatric conditions from which Mr Lawrence suffers have had a significant functional impairment on his daily life, in his ability to properly care for himself and to relate to people in a socially acceptable way and form friendships. His psychiatric conditions have also significantly interfered with his capacity to work and earn an income.
I am satisfied the overwhelming and dominant cause of those conditions is the child sexual abuse suffered by Mr Lawrence while he was in the care of the Christian Brothers.
I accept that Mr Lawrence's psychiatric illnesses have throughout his life been severe and disabling, resulting in frequent psychiatric hospital admissions and multiple suicide attempts. Mr Lawrence has throughout his life been constantly tormented by memories of the abuse.
I am also satisfied that the sexual abuse directly caused Mr Lawrence to suffer from learning difficulties. Because for a significant period of his time at Castledare and Clontarf the abusers were his teachers, particularly Brother Murphy, Mr Lawrence was unable to learn anything. It is unsurprising Mr Lawrence was illiterate when he left Clontarf.
I reject Dr Piirto's opinion that:[966]

[690]

By s 10A of the CLA, in determining damages for non-pecuniary loss, or general damages for pain and suffering and loss of amenities, this court may refer to earlier decisions of the court, or other courts, for the purpose of establishing an appropriate award. For that purpose the parties may bring to the court's attention any awards of general damages in earlier decisions.
Neither counsel has been able to find any cases similar to this case in which an award of general damages has been made. I was informed this is the first case of its kind to go to trial in Western Australia.[967] Neither have counsel been able to locate any previous decisions of this court in which damages were assessed just for psychiatric injury and not for a combination of physical and psychiatric injury.
However counsel for Mr Lawrence has referred me to decisions in cases from courts in the eastern states. Generally assessments of general damages by courts in other states should be approached with caution, not because any criticism is suggested, but because assessments of general damages can often vary from state to state. Therefore an assessment of general damages on similar facts in a court in one state may not provide much guidance to a court in another state assessing general damages for similar injuries. Further, comparing the facts in one case to the present case can be fraught with difficulty.
Despite those reservations I am required by s 10A to have regard to assessments of courts in other jurisdictions which are brought to my attention and accordingly I do so.
In Erlich v Leifer[968] a 28-year-old plaintiff who was sexually abused at school by her teacher and principal when she was about 15 and sustained psychiatric injury was awarded general damages of $300,000 in the Victorian Supreme Court. The sexual abuse involved digital penetration of the plaintiff's vagina and sucking of her breasts on a regular basis over a period of approximately three years in the mid-2000s. The plaintiff was diagnosed with PTSD in about 2010 and attended many counselling sessions. She had suicidal thoughts and exhibited self-harm behaviour. Her symptoms were described as severe. The plaintiff's psychiatric condition had stabilised with medication and treatment but the prognosis was guarded. The trial judge found the plaintiff suffered a major psychiatric illness which had a profound impact on her life and was likely to remain with her, fluctuating in intensity, for the remainder of her life.[969]
Hand v Morris[970] is another Victorian Supreme Court decision where a plaintiff was awarded damages for injury caused by childhood sexual abuse. The plaintiff was aged 51. He was sexually abused by his teacher at 9 years of age and suffered psychiatric injury in the form of an anxiety disorder. General damages were assessed at $260,000. The abuse involved the teacher over the course of a year in 1974 directing the plaintiff to come to the front of the class and sit next to the teacher behind an open desk. The teacher then unzipped his fly and grabbed the plaintiff's hand, forcing him to hold and masturbate the teacher's penis. This incident happened a couple of times a week over the course of a year. The trial judge found that the abuse had had a lifelong impact on the plaintiff, having a profoundly damaging effect on his self-esteem, confidence and relationships with others. His work performance and satisfaction were impaired. He suffered a generalised anxiety disorder which was chronic and would endure for the whole of the plaintiff's life.[971]
In MC v Morris,[972] a decision of the New South Wales Supreme Court, Fagan J awarded general damages of $400,000 for psychiatric injury suffered as the result of childhood sexual abuse. The plaintiff was sexually assaulted on six separate occasions between the ages of 13 and 15 between 1996 and 1998 by the defendant who was a neighbour of the plaintiff's parents. Two of the assaults involved what was described as 'homosexual intercourse' and four incidents involved acts of fellatio. The acts were described by the trial judge as 'disgusting and gravely humiliating to a boy of between 13 and 15 years'.[973] The plaintiff's psychological injury manifested itself in anger management issues. On one occasion he smashed his house and the police were called. The plaintiff was committed to a mental health hospital as an involuntary patient for three months. He suffered from recurrent intrusive thoughts of the abuse. He suffered poor sleep, irritability, anxiety and social withdrawal. He was suffering from severe depression in 2017 and 2018. The plaintiff's work history involved him working in a variety of short-term jobs and having intermittent employment. The plaintiff's loss of enjoyment of life was described as immense. His physical health was described as grave which was as a consequence of the psychological damage caused to him. The general damages included aggravated damages. The sum of $400,000 comprised $250,000 for past damages and $150,000 for future.[974]
The way in which general damages in that case were assessed highlights reservations about comparing assessments between courts in different states. An assessment of general damages in Western Australia is not normally separated into an amount for past general damages and an amount for future general damages.
However, I acknowledge the impact of psychological injury on the plaintiff's life bears comparison with Mr Lawrence's circumstances.
In TB v State of New South Wales; DC v State of New South Wales[975] Campbell J of the New South Wales Supreme Court awarded two sisters aged in their 40s, who were sexually abused by their stepfather and suffered psychiatric illness, general damages assessed respectively at $377,500 and $269,000. Each of the plaintiffs were regularly sexually abused in their school years, 30 years previously.[976]
It is difficult to readily discern the exact nature and extent of the sexual abuse which is described in general terms as complaints of sexual abuse or sexual assault. However it seems to have included the stepfather raping the sisters[977] and also included digital penetration, forced fellatio and inappropriate touching and kissing.[978]
Each of the sisters suffered PTSD as the result of the sexual abuse which was described as a serious psychiatric injury.[979] The abuse spanned a period of years.[980] TB suffered from panic attacks and agoraphobia which significantly impacted on her ability to function in every aspect of her life, making it difficult for her to relate to other people and impacting upon her relationships. She felt constantly depressed.[981] TB was 47 at the time of assessment, living with a supportive partner.[982] The award for general damages of $377,500 was assessed on the basis that her pain and suffering and loss of enjoyment of life was the equivalent to 66% of a most extreme case.[983] So that assessment was apparently made in accordance with a statutory limit similar to the limitation which applies to the awarding of general damages for people injured in motor vehicle accidents pursuant to s 3C and s 3D of the Motor Vehicle (Third Party Insurance) Act 1943 (WA).
DC suffered similar symptoms to her sister TB. She was diagnosed as suffering from PTSD. The prognosis was guarded. DC was aged 44. Campbell J thought she was coping better than TB and assessed her general damages on the basis of 47% of a most extreme case, equating to $269,000.[984]
As the assessments for general damages were based upon a mandated statutory formula, they provide limited guidance as to the appropriate award of general damages in this case which is not to be constrained by any statutory formula. The current amount for general damages which can be awarded under the Motor Vehicle (Third Party Insurance) Act for a most extreme case is $425,000.[985] Sixty-six percent of $425,000 is $280,500 and 47% is $199,750.
The final case to which Mr Lawrence's counsel directed me is Gevsvach v Gevsvach.[986] A 35-year-old plaintiff claimed she was sexually assaulted by her father over a 10 year period from the age of four until the age of 14. Her claim was dismissed on the basis the plaintiff did not discharge her onus of proof that the abuse occurred. However damages were assessed on a hypothetical basis and general damages were notionally allocated at $300,000.
Given that case only provisionally assessed damages having dismissed the action, it provides no useful guidance regarding the appropriate award of general damages in Mr Lawrence's case. The alleged facts of the abuse were also different to the facts of this case.

[691]

I am not persuaded any of the authorities provide useful guidance as to the award for general damages, pain and suffering and loss of amenities to be made to Mr Lawrence. The two cases which perhaps bear the closest factual resemblance to the circumstances in Mr Lawrence's case are Hand v Morris and Erlich v Leifer because they involve elements of institutional abuse committed by teachers and persons in authority over the plaintiffs when they were children. However the abuse in each case was not as severe or as prolonged as the abuse to which Mr Lawrence was subjected. Also the impact of the psychological harm on each of the plaintiffs in those cases, while having similarities to Mr Lawrence's experience, were in some respects not as severe as the impact of the psychological harm which has been suffered by Mr Lawrence. Mr Lawrence has had to live with the consequences of the harm caused to him much longer than each of the plaintiffs in those cases.
In relation to MC v Morris I have already observed that the assessment of general damages in that case was approached on a different basis than the assessment of general damages is normally approached in Western Australia. Also the sexual abuse suffered by the plaintiff, while severe, is not in my view as severe as the sexual abuse to which Mr Lawrence was subjected. Although an injured plaintiff is not to be awarded general damages measured by reference to the severity of the sexual abuse, the severity of the abuse will generally be reflected in the severity of psychological or psychiatric harm which is suffered. Also, in Mr Lawrence's case, the brutal and violent nature of the anal rapes perpetrated by Brother Murphy, particularly the first rape, would have, I am satisfied, humiliated and degraded Mr Lawrence and he is entitled to be awarded damages for that humiliation and degradation. As I have acknowledged, the impact of the plaintiff's injury in that case has similar features to the harm suffered by Mr Lawrence. The harm suffered by Mr Lawrence has been severe. The abuse has devastated his life.

[692]

Following the initial violent and brutal anal rape perpetrated upon Mr Lawrence when he was a 9 year old child by Brother Murphy, the course and trajectory of Mr Lawrence's life was irrevocably determined. From that moment it was inevitable Mr Lawrence would be tormented by what was done to him for the rest of his life and suffer serious psychiatric injury. If there could possibly be any uncertainty about that, the outcome was put beyond doubt by the ongoing repeated anal rapes committed by Brother Murphy over the next approximately two years when Mr Lawrence was aged 9 and 10. Mr Lawrence was a small boy, about 3 foot in height. Brother Murphy was an adult, about 6 foot in height, twice the height of Mr Lawrence. Brother Murphy was supposed to be Mr Lawrence's carer. He was his teacher. Mr Lawrence was a young, isolated, vulnerable boy, abandoned by his mother who had treated him poorly. He was in desperate need of care and support. The Christian Brothers, as an institution, and those Brothers who sexually abused Mr Lawrence, particularly Brother Murphy, failed to come close to providing the care and support Mr Lawrence so desperately needed. Of course, that need for care and support was only heightened after Mr Lawrence was first anally raped by Brother Murphy.
The circumstances of that initial rape were extremely violent. It was committed during the night when Mr Lawrence was taken from his bed, where he ought to have been entitled to feel he was safe, and taken into Brother Murphy's bedroom. Mr Lawrence was naked as he had taken off his pyjamas after wetting his bed. Mr Lawrence was told to lie on the bed following which Brother Murphy lay on top of him and turned Mr Lawrence over to lie on his stomach when he was anally penetrated. The violence of the rape is demonstrated by the anal bleeding Mr Lawrence first noted the next day, only after it was brought to his attention he was bleeding by another boy. From that point of time, Mr Lawrence regularly suffered anal bleeding throughout his childhood and into his adulthood until he underwent surgery in his late 20s_._[987]
The repeated anal rapes perpetrated by Brother Murphy, and the attempted anal rape committed by Brother Marques, exacerbated the physical injury suffered by Mr Lawrence as a result of the initial anal rape. The circumstances in which Brother Murphy first raped Mr Lawrence at Clontarf are equally as brutal and horrifying. Brother Murphy took Mr Lawrence from his bed in the middle of the night, stripped Mr Lawrence of his pyjamas and massaged Mr Lawrence's naked body following which he rubbed his penis on Mr Lawrence's stomach. Brother Murphy then rolled Mr Lawrence onto his stomach, digitally penetrated Mr Lawrence's anus and then inserted his erect penis into Mr Lawrence's anus until he ejaculated. After he was finished Brother Murphy pushed Mr Lawrence out of the room. Mr Lawrence took his pyjamas with him and returned to his bed, crying.
Although Mr Lawrence was unable to fully describe the pain, horror and terror he must have experienced because of that initial rape, compounded by the repeated rapes over the next two years, I am satisfied he experienced extreme pain from that initial rape. I am satisfied he continued to experience significant pain every time he was raped. When Brother Marques attempted to anally rape Mr Lawrence in the saddle room, Mr Lawrence was crying and screamed in pain. Brother Marques took no notice and continued trying to insert his penis into Mr Lawrence's anus. The incident only finished when Mr Lawrence was able to break away when he could not stand the pain, and when he was crying and screaming. While Brother Murphy was anally raping him, Mr Lawrence was crying. The only notice Brother Murphy took of Mr Lawrence's distress was to tell him to be quiet and threaten him with violence if he was not quiet. On other occasions after he was raped by Brother Murphy he was left to walk back to his bed, naked, while carrying his pyjamas. He was crying and missed his mother.
From the point of time Mr Lawrence was subjected to that first rape, while he continued to remain a resident at Castledare and Clontarf, he lived in perpetual fear and terror of being again raped and sexually abused in other ways by Brother Murphy. As described by Dr Shub, Mr Lawrence was in a constant state of hypervigilance, never sure, and powerless to do anything about it, when he would next be taken from his bed in the middle of the night and violently and brutally raped by Brother Murphy.
The horror and terror Mr Lawrence must have experienced from that first rape is barely imaginable. It is barely imaginable the fear Mr Lawrence must have lived with over the next two years, wondering when he would next be taken from his bed in the middle of the night and again anally raped. It is difficult to understand the degradation and humiliation he must have afterwards suffered when he went to the toilet with the sperm coming out of his anus and suffering from anal bleeding. It is easy to understand the embarrassment he must have felt finding his underpants and shorts stained with blood, and when another boy saw the bleeding. It is impossible to understand how a 9 or 10 year old boy was able to cope in such traumatic circumstances. It is, however, easy to accept that as a result of that first rape, Mr Lawrence was deeply psychologically traumatised by what Brother Murphy had done to him.
Although the abandonment and maltreatment of him by his mother in England left him desperately in need of care and support, I am satisfied that despite that early disadvantage and dysfunction in his life, there was every chance Mr Lawrence, had it not been for the sexual abuse, would have had reasonable prospects of leading a reasonably normal life. If there was any chance of Mr Lawrence being able to lead a normal life, which I believe there was, when he arrived at Clontarf, that chance became unlikely after Mr Lawrence was first raped. Even if after that first rape there still remained some prospect of Mr Lawrence being able to lead a relatively normal life, that prospect was extinguished by the subsequent rapes to which Mr Lawrence was subjected, together with the other forms of abuse perpetrated upon him, by Brother Murphy and the other sexual abusers masquerading as Brothers, who were supposed to be responsible for the care and protection of Mr Lawrence.
It is readily understandable why, after the first rape, Mr Lawrence felt depressed and missed his mother. He was aged 9 at the time. Despite the maltreatment of him by his mother, she was still his mother and he needed someone to whom he could turn for help after he had been violently raped. When Mr Lawrence described the incident as shocking that is an instance of how he downplayed the trauma of what had happened to him. To simply describe that first rape as shocking does not fully describe the horror and terror of what Mr Lawrence endured.
Almost on a constant basis from the time he was first raped by Brother Murphy to the time he left Clontarf as a 16 year old, Mr Lawrence was regularly sexually abused in a variety of ways. He lived in an environment in which boys were threatened, intimidated and abused. There was a pervading atmosphere of fear and terror. Mr Lawrence and the other boys were dehumanised. Their identities were taken from them. They were not called by their names but by a number allocated to them when they arrived. The way in which they were regarded, and treated, is reflected in their description as 'inmates' in the CWR. However, it was the regular sexual abuse to which Mr Lawrence was subjected which was the overwhelming and predominant issue in his life while in the care of the Christian Brothers.
Life at Clontarf and Castledare became one of survival. The sexual abuse of boys was prevalent. The boys were helpless and defenceless. There was no one to whom they could turn. When they did report the abuse, they were accused of being liars and were violently physically beaten as 'punishment'. Mr Lawrence knew that. He had no one to whom he could turn. He was on his own. He could not defend himself. Little wonder the horrors of his time at Clontarf and Castledare, which have predominantly focused on the sexual abuse he suffered, have tormented him throughout his life. His childhood was destroyed. His adult life has been irrevocably damaged. The psychiatric injury suffered by him as a result of the sexual abuse has interfered in every aspect of his life and significantly impacted upon his ability to function on a daily basis. The sexual abuse has profoundly impacted on his life. Everything else in his life, his disadvantaged and dysfunctional early childhood in England, the emotional deprivation he suffered at Clontarf and Castledare, any physical abuse to which he was subjected unrelated to sexual abuse, any marriage difficulties, pale into insignificance compared to the impact of the child sexual abuse.
By the time the Christian Brothers wiped their hands of Mr Lawrence and abandoned him when they essentially sent him out onto the streets at the age of 16, Mr Lawrence was already a deeply psychologically injured person who stood little chance of making a successful life for himself. Dr Shub's description that it was miraculous that Mr Lawrence actually worked for as long as he did, reflects my views. Further, I regard it as miraculous that Mr Lawrence, given the torment with which he has lived ever since he was first raped, causing him psychiatric and psychological injury, leading to alcoholism, drug overdoses, self-harm and suicide attempts, has survived at all.
I have earlier explained that I accept Dr Shub's expert opinion and on the basis of that, I find that Mr Lawrence has throughout his life suffered PTSD and a Major Depressive Disorder, and later developed an alcohol use disorder, which are caused by the child sexual abuse suffered by Mr Lawrence when he was in the care of the Christian Brothers. I am satisfied that the child sexual abuse is the predominant and overwhelming cause of the psychiatric injury suffered by Mr Lawrence. Had it not been for the child sexual abuse, I believe Mr Lawrence would probably have led a reasonably normal life and would not have been constantly tormented by memories of the sexual abuse he suffered. I am satisfied Mr Lawrence has constantly suffered from intrusive thoughts about the sexual abuse from which he is unable to escape. Those intrusive thoughts and the torment have interfered with Mr Lawrence's enjoyment of life. They have interfered with his capacity for work. The psychiatric injury has put him in constant conflict with people around him. As a result, he has largely led a lonely and isolated life.
I am satisfied the nature and extent of the sexual abuse perpetrated upon Mr Lawrence when he was a young boy, in the care of and taught by, the people who were abusing him is in the range of the most severe types of sexual abuse.
Beside the psychiatric harm suffered by Mr Lawrence as a result of the child sexual abuse he also suffered a significant physical injury causing anal bleeding over an extended period of time, probably until Mr Lawrence's late 20s when he underwent surgery for haemorrhoids. Although very little evidence was given about how that injury impacted upon Mr Lawrence's life, and as I have noted there is confusion as to when the surgery was performed, I accept the condition would have been painful and embarrassing. Certainly, the circumstances in which Mr Lawrence was anally raped by Brother Murphy and also when Brother Marques attempted to anally rape him caused Mr Lawrence significant physical pain.
While Mr Lawrence's early disadvantaged childhood experiences in England featured in his life after he left Clontarf and were reported to doctors and recorded in the medical records, those experiences were not by themselves debilitating. The reporting of those early childhood experiences is always in the context of the experiences while in the care of the Christian Brothers, principally the childhood sexual abuse to which Mr Lawrence was subjected.
To the extent that those early childhood experiences did feature in Mr Lawrence's life after he arrived in Australia, and after he left Clontarf, they created a vulnerability to mental harm and psychiatric injury. When Mr Lawrence was sexually abused he was, because of his early background, less able to cope and more vulnerable to injury and harm than most children. He had been abandoned by his mother. As a young child, he had been taken far away from his country of birth and his immediate family. He was alone, without anyone to turn to for care, protection, and support. He did not, nor could he, trust anyone to be able to care for, protect, and support him. As a consequence, there was the likelihood that any harm or injury caused to him by the child sexual abuse was greater than it may have been to someone not already vulnerable to harm and injury because of their disadvantaged early childhood and upbringing.
Throughout the medical records his early childhood experiences in England do not feature as prominently as does the child sexual abuse. The childhood experiences in England were always reported in the context of the reporting of the child sexual abuse and the impact that abuse had on Mr Lawrence. The early childhood experiences in England, and any harm that may have been caused to Mr Lawrence because of them, were subsumed by the childhood sexual abuse and the harm caused by it. If there was any harm caused by the early childhood experiences that was entwined with the harm caused by the child sexual abuse.
As a negligent defendant the Christian Brothers must take an injured plaintiff, Mr Lawrence, as they find him. To the extent Mr Lawrence was already vulnerable to psychiatric injury because of his early childhood experiences before he was sexually abused by the Christian Brothers and because of that vulnerability, the trauma of the sexual abuse had a greater impact upon him, the Christian Brothers are liable for the full consequences of that injury.[988]
It is also likely that those early childhood experiences in England, particularly the abandonment by his mother, weighed more heavily on Mr Lawrence's mind because of the child sexual abuse. Although it is not addressed in the reports of the psychiatrists it seems to me to be a matter of common sense that Mr Lawrence would harbour feelings of anger and resentment about his mother because of her abandonment of him and her failure to protect him against the child sexual abuse.
I acknowledge that being cast out on the street at the age of 16 with little education and no support and left to fend for himself is a less than ideal way to provide a foundation to prepare a boy for a normal and fulfilling life. However, but for the child sexual abuse, there was always the potential, always the prospect or the chance, that despite such an unfavourable beginning Mr Lawrence would have been able to lead a normal and happy life and obtain and hold steady full-time work and establish himself with an employer that might, in due course, lead to promotion and less labour intensive employment as he aged. The child sexual abuse destroyed that chance. I am satisfied that the harm or injury caused to Mr Lawrence by the child sexual abuse directly contributed to the pattern of itinerant, short-term casual employment over Mr Lawrence's working life. He was never able to settle, or feel settled, in any employment or with any employer. He was constantly tormented by memories of the sexual abuse. That torment caused him to be irritable, impatient, frustrated and in conflict with both fellow workers and supervisors and employers. The child sexual abuse is directly related to Mr Lawrence leading a lonely and isolated life, being perpetually in conflict with people around him, unable to form lasting friendships or relationships. His only long-term relationship was with his former wife, a relationship marred by their mutual poor mental health. In Mr Lawrence's case, his inability to properly relate to or trust other people or form a loving relationship with someone has a direct relationship to being sexually abused by those persons who were in a position of trust in relation to Mr Lawrence and whom he should have been able to trust.
Having regard to all of those matters, I award Mr Lawrence the sum of $400,000 for general damages for pain and suffering and loss of amenities.

[695]

Counsel for Mr Lawrence submits that had it not been for the psychiatric injury he suffered as a result of the sexual abuse, Mr Lawrence would have been in full-time employment during his normal working life, earning at least the average weekly earnings as assessed by the forensic accountant, Mr Thompson. Further, counsel, conceding that the evidence of how long Mr Lawrence worked each year and what his earnings were is uncertain, submits damages for loss of earning capacity during the period Mr Lawrence worked, that is, between 1962 (when Mr Lawrence turned 18) until 1990, which is when he ceased working and was placed on an invalid pension, should be assessed on the basis of the difference between what Mr Lawrence actually earned and what he would have earned as a full-time employee in regular employment. Thereafter damages for loss of earning capacity are assessed from 1990 until 2010 when Mr Lawrence would have retired at the age of 66. Such an approach assumes that until he started receiving invalid pension benefits, Mr Lawrence worked 50% of a normal working year and earned 50% of the average weekly earnings. It is also accepted that some allowance should be made for the period of time when Mr Lawrence was totally unfit for work because of a back injury and while he was recovering from multiple back surgeries following which, it is submitted, Mr Lawrence would have sufficiently recovered to be able to return to work and exercise his capacity to earn until normal retirement age had it not been for the impact of the psychiatric injury upon him. Counsel submits that had it not been for the psychiatric injury, Mr Lawrence would have remained fit for work beyond the age of 45 and would not have been eligible for the invalid pension.
Counsel for the Christian Brothers submits that Mr Lawrence's work history and earnings were in fact better than he suggested when he estimated he worked on average about five months each year. It is submitted that the documentation establishes Mr Lawrence worked more than 50% of the time and probably worked closer to 75% of the time.[992] Counsel submits the correct measure of Mr Lawrence's loss of earning capacity is 21% of the average weekly earnings, to take into account the educational factor referred to by Mr Thompson, referring to people who did not go beyond third year high school. As a result of Mr Lawrence leaving the Christian Brothers with poor skills and a lack of education, and then not receiving any support from the CWD after he left Clontarf, a reduction of 21% of the average weekly earnings is a realistic assessment of the income Mr Lawrence could have earned had he exercised his full earning capacity. As he worked 75% of the time, the measure of his loss is 25% of the average weekly earnings reduced by 21%.[993] Further, counsel submits that when Mr Lawrence ceased working because of his back injury and later received the invalid pension at the age of 45, he remained unfit for work because of his back condition. Therefore, he had no retained earning capacity beyond the age of 45 which he would have been able to exercise were it not for the psychiatric injury.
In summary, counsel for the Christian Brothers submits Mr Lawrence's claim for loss of earning capacity is limited to the period from when he was aged 18 to the age of 45, the measure of his loss being 25% of the average weekly earnings over that period less 21%. There is therefore a stark difference between the parties' positions.

[704]

Mr Thompson assumed Mr Lawrence worked in unskilled labouring jobs for about 50% of the time between 1960 and 1990 based on his instructions.[1004]
Despite the letter of instructions and despite Mr Thompson's report being tendered by Mr Lawrence, it is argued on behalf of Mr Lawrence that Mr Thompson's calculations underestimate his loss. It is submitted that because Mr Lawrence gave evidence that he estimated he worked five out of 12 months on average, therefore the loss should be assessed on the basis of Mr Lawrence only working five months a year and not six months.
Mr Lawrence's estimation that he worked five months a year is not reliable. It is certainly not a basis upon which I am persuaded to assess past loss on the basis Mr Lawrence only worked five months a year between the ages of 18 and 45 (when he started receiving the disability support pension). Mr Lawrence's estimation of the amount of time he worked is not confirmed by the list of jobs he prepared[1005] which does not provide much guidance as to the amount of time or the periods in which Mr Lawrence worked on average each year. Again, these observations should not be interpreted as being critical of Mr Lawrence. I think he was trying to do the best he could in trying to remember what had happened many years ago. There is an obvious inconsistency between what presumably Mr Lawrence instructed his solicitors, of which they in turn instructed Mr Thompson, and Mr Lawrence's evidence. It highlights it is only a very rough estimation which is not, understandably, reliable.
Defence counsel submits the documentation, particularly medical records, indicates that Mr Lawrence was working, on average, for more than six months a year. Mr Lawrence said he was a hard worker. He worked to distract himself. The Christian Brothers accept Mr Lawrence was a hard worker.[1006]
In a report dated 18 August 1989, a social worker noted 'Mr Lawrence stated that he has attempted to deal with the past by "burying" himself in his work'. The social worker commented that Mr Lawrence had had a 'very stable work history in the past'.[1007] It is submitted that from Mr Lawrence's evidence and the contemporaneous medical and related documentation Mr Lawrence had no difficulty in obtaining employment. The conclusion that Mr Lawrence had had a very stable work history could only have been based upon the information provided by Mr Lawrence based upon what he recalled was his work history over the previous 30 years of his life. Therefore, the reliability of the conclusion depends upon the reliability of the information Mr Lawrence provided. The observation was not a contemporaneous record of Mr Lawrence's work history given he had not worked for some time prior to 1989 after he injured his back. Although I accept, mainly from the medical records from 1975, but also on the basis of Mr Lawrence's estimation of the employment he undertook, that Mr Lawrence had a reasonably consistent work history, given the itinerant nature of it, involving employment for periods of short duration, I would not regard it as a stable work history.
Counsel also refers to Mr Lawrence's evidence that he never obtained social security payments before his worker's compensation claim was settled. In the 12 months before he commenced receipt of worker's compensation payments, Mr Lawrence was employed by Bunnings and then Whittakers. It is submitted on the basis of that evidence Mr Lawrence worked more than 50% of the time before he commenced on a disability support pension in 1989.[1008] Therefore it is submitted Mr Thompson's calculation of Mr Lawrence's actual earnings is unsupported by the evidence and is too low.
Mr Thompson explained that his chart at sch B[1009] of his report, giving the broad relationship between education standards and earnings, is based on figures from 2000 and later. In the 1960s and 1970s people left school earlier and the association between education and the AWE was very different. He said it was likely that a middle school level of education was associated with the AWE at the time Mr Lawrence left school. He conceded he had probably punished Mr Lawrence by applying a 16% deduction to the AWE for a high school education in 1960. When Mr Thompson was questioned about applying a 16% deduction to the AWE for a high school education in 1960, he explained:[1010]

[725]

What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the 'disentangling' evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of 'disentanglement' discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations - not proof on a balance of probabilities.
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
In Sellars v Adelaide Petroleum NL,[1021] referring to Malec v JC Hutton Pty Ltd, the High Court said:[1022]

[733]

Counsel for Mr Lawrence submitted that had it not been for the child sexual abuse it is probable Mr Lawrence could have done almost any job he turned his mind to and would have expected to have stayed in stable employment. As an example, instead of staying as a tallyman at Bunnings, Mr Lawrence might in due course have become a supervisor. Instead of being a labourer with Western Mining he could have become a storeman or a safety officer. Instead of being a deckhand on a crayfishing boat, he could have become a skipper of a boat. Instead of being a labourer in various occupations, he could have become a supervisor. He could have undertaken training and received certification to work in such positions as a plant operator or a crane operator.[1028] There is force in those submissions.
Instead of maintaining stable employment, being promoted, undertaking extra training and earning trade or industry qualifications, such as a plant operator or a safety officer, Mr Lawrence has led an itinerant, unstable working life, working in casual, short-term employment, restricted to labouring and semi-skilled positions. The psychiatric injury or harm suffered by him as a result of the childhood sexual abuse, which I accept is properly characterised as PTSD and a Major Depressive Disorder, has resulted in Mr Lawrence, from a relatively early age, regularly abusing alcohol, such that it has affected both his capacity for work and his reliability to undertake work; regular drug overdoses leading to frequent admissions to hospital; anger management issues leading to regular conflict with fellow workers and supervisors and employers; frustration and inability to concentrate and focus on a job over an extended period; being constantly tormented by memories of the abuse, interfering with both his ability to perform his work duties and to maintain steady or long-term employment. Before he commenced employment Mr Lawrence, had he not suffered the child sexual abuse, would probably have fared better at school and left school being able to read and write. It is inconceivable that he would not have been able to read and write after eight years of school.
There is no simple way to assess Mr Lawrence's earning capacity had he not been sexually abused. I do not consider the employment Mr Lawrence actually obtained determines or limits the range of work which might have been available to him had he not been sexually abused. There was a strong possibility a much wider range of employment would have been open to Mr Lawrence had he not been injured. I consider the possibility of Mr Lawrence working in a far wider range of employment than he actually did should not be unduly restricted. At worst, Mr Lawrence, had it not been for the sexual abuse might, in his early years, have been confronted with some challenges, in part because of his early disadvantaged childhood, but also because of a limited education with the Christian Brothers and being cast out onto the streets without any support, guidance or direction. However, as against that, as illustrated by the successful careers both AB and CD eventually achieved, when they were also sexually abused, Mr Lawrence could equally have followed a successful career path in some occupation. Had he established longevity in an industry, or with an employer, there was the chance of promotion, or, with extra training, obtaining industry qualifications. I accept the sorts of opportunities identified by Mr Lawrence's counsel would have been open to Mr Lawrence.
It was also possible, had he not suffered from the learning difficulties which were directly connected to the sexual abuse he suffered, he might have been able to obtain a junior position in a government department or in a bank, or in some type of office-based work. An entry in the Graylands Hospital records of 5 June 1977 records that Mr Lawrence said he had been working as a printer for nine months.[1029] When Mr Lawrence was admitted to hospital for surgery to his fingers in March 1980, his occupation was listed as a printer with UNT Packages.[1030] In an earlier Fremantle Hospital record of 29 January 1980, it was noted Mr Lawrence had a hand injury and could not work as a shearer.[1031]
The opportunity to work in other areas or industries, that chance, was denied him because of the child sexual abuse. The sexual abuse perpetrated upon Mr Lawrence made it almost inevitable he would suffer psychiatric injury and as a consequence face significant challenges in being able to hold down stable, full-time, permanent employment.
I accept Mr Lawrence was a hard worker and regularly and consistently sought, and obtained, employment until about the age of 45 when he commenced receipt of a disability support pension. Although the medical records only commence in 1975, when Mr Lawrence was aged 31, they confirm Mr Lawrence was regularly working. The 1975 and 1976 records confirm he had worked in Geraldton, Karratha, and Carnarvon. However, because of the lack of any contemporaneous records, such as taxation and employment records and financial and banking records, the periods Mr Lawrence worked, and more importantly the earnings he received, cannot be determined with any reliability or certainty.
Doing the best I can from the inadequate, or lack of records, I am satisfied that Mr Lawrence's loss of earning capacity should be assessed on the basis that from the ages of 18 to 45, he worked 50% of the year, that is for six months, in labouring, semi-skilled casual positions, generally for periods of short duration as he moved from place to place, and job to job.
In my view, Mr Lawrence's loss of earning capacity must be assessed on the basis of what he would have earned if he had been employed in stable, full-time, employment between the ages of 18 to the age of 45 when he commenced receipt of the invalid/disability support pension, in part because of a back injury. That is a period of approximately 30 years. It is then necessary to assess whether from the age of 45 to the age of retirement at 66, Mr Lawrence had a retained earning capacity which he would have exercised and from which he would have earned income. In other words, after Mr Lawrence commenced receipt of the disability support pension was any retained earning capacity (on the basis he had not been injured as a result of the child sexual abuse) diminished and was the diminution of that earning capacity productive of financial loss.

[734]

In my view, it is not appropriate to assess Mr Lawrence's loss of earning capacity based on the minimum wage. I do not consider the minimum wage properly reflects the income Mr Lawrence would probably have earned, or been able to earn, had he not been suffering from PTSD and a Major Depressive Disorder. As I have found, Mr Lawrence's earning capacity ought not be limited by the areas of employment he actually worked in. He obtained that employment carrying the burden of the psychiatric injury or harm he suffered as a result of the child sexual abuse. It is a testament to Mr Lawrence's work ethic that he was able to work to the extent and for as long as he did. Had he not been so injured, there was a probability, at least the strong possibility, he would have obtained work in other areas. The employment he could have obtained had he not been injured ought not be limited by or restricted to the employment he did in fact obtain while injured.
In my view, assessing his loss of earnings by reference to the adult weekly earnings is a reasonable and fairer measure of Mr Lawrence's loss of earning capacity as a consequence of his psychiatric injury.
It is also necessary I accept Mr Thompson's calculation that on the assumption Mr Lawrence worked about 50% of the year, his actual earnings equated to average weekly earnings less 21% which reflects the age when he left school and the type of work he performed.
Next, it is necessary, having regard to the Malec v JC Hutton Pty Ltd considerations, what estimate should be made of the likelihood that Mr Lawrence would in any event, because of all of the other matters from his background and in his life, including his early disadvantaged childhood in England and his poor education and maltreatment (not referring to the sexual abuse), have led to a poor outcome in relation to Mr Lawrence's working life. In my view, Mr Lawrence's early childhood experiences in England would have had minimal impact upon his working life for the reasons I have already explained. I therefore give that factor very little weight in deciding whether any discount should be made to the assessment of past economic loss.
I accept that because of the way Mr Lawrence was treated by the Christian Brothers, particularly the lack of any meaningful education, and then being cast out on the streets without any notice and without any guidance or support or direction, may have adversely impacted upon Mr Lawrence's prospects of establishing a steady and stable working history. When he left Clontarf, Mr Lawrence was ill-equipped at such a young age, and without guidance or direction, to commence upon a steady work history. I therefore take those matters into account and give them some weight.
I do not regard the physical punishment or abuse to which Mr Lawrence was subjected when in the care of the Christian Brothers, were it able to be separated from the child sexual abuse, to be significant in what might have been the outcome of Mr Lawrence's working life, but I give it some weight.
The traumatic experience of being a passenger on the bus when he was aged about 11 when one boy died and others were seriously injured in a motor vehicle accident does not feature large in Mr Lawrence's life and I give it no weight in estimating what might have been Mr Lawrence's working life had he not been sexually abused.
Nor do I accept the rape to which Mr Lawrence was subjected in the second farming job he had after he left Clontarf when he was aged about 17, while a significant incident which I accept traumatised Mr Lawrence, materially altered the outcome of what might have been Mr Lawrence's working life. Had that sexual assault been the only incident of sexual assault in Mr Lawrence's life, it is likely to have had a much greater impact on Mr Lawrence's future direction. At the time the assault happened Mr Lawrence, because of his experiences of being sexually abused by the Christian Brothers, was more vulnerable to further sexual assault. It is possible that assault would not have happened at all had Mr Lawrence not already been damaged as a result of the earlier abuse by the Christian Brothers. It is therefore difficult to separate that assault from the earlier sexual abuse. However, I give it some weight and make some allowance for it in estimating the likelihood that Mr Lawrence, had it not been for the child sexual abuse suffered by him when he was in the care of the Christian Brothers, would not have established a full-time stable working life.
To the extent he may have suffered any psychological trauma by the reason of his early childhood experiences, the trauma of the bus accident and the sexual abuse by the farmer it is unlikely he would have suffered the extent of ill-health he did suffer.
The Christian Brothers also submit that Mr Lawrence experienced psychological trauma resulting from a number of separations from his wife, primarily in or about 1984 and 1998.[1032] The volatile nature of Mr Lawrence's marriage was caused by the psychologically flawed and harmed personalities of both Mr Lawrence and his former wife. As has been mentioned, they met each other when they were both patients in Graylands Hospital suffering from poor mental health. Had Mr Lawrence not suffered psychological injury because of the child sexual abuse it is unlikely he would have met and married his wife. The more likely outcome is that he would have met and married someone who was not psychologically damaged. I give little weight to any psychological trauma Mr Lawrence may have suffered during his marriage. It is not uncommon for people to be able to maintain steady full-time employment while experiencing the trauma of a marriage breakdown.
Although it is not referred to by counsel, in mid to late 1979 Mr Lawrence underwent surgery in relation to a recurring ganglion. The Fremantle Clinic notes record that Mr Lawrence was on sick leave and hoped to get work with Jasens after his stiches were removed on 10 September.[1033] The incident in which he attacked police with a knife occurred on 26 December 1979. Mr Lawrence was remanded in custody after he was charged with aggravated assault of a police officer. He was taken to Graylands Hospital and discharged on 17 January 1980. The hospital notes record Mr Lawrence had been unemployed for a number of weeks.[1034] I find that that incident was directly related to Mr Lawrence's psychiatric illness caused by the sexual abuse which caused him to drink alcohol to excess and become violent and angry. Therefore, any inability to work because of being charged with that incident and being hospitalised was directly related to the psychiatric injury caused by the sexual abuse. However, any time off work as a result of undergoing surgery for a recurring ganglion was not related to the psychiatric illness and is a factor I take into account in assessing the probability that Mr Lawrence would have maintained full-time employment.
Mr Lawrence underwent further surgery in March 1980 following a self-inflicted laceration to his fingers.[1035] He was then working as a shearer but was given a sickness certificate for one month. I find that any period in which Mr Lawrence was incapacitated for work because of self-inflicted laceration to his fingers requiring surgery is directly related to psychiatric illness caused by the sexual abuse. The relevance of the records at that time is that they indicate, despite suffering from a ganglion and undergoing surgery, Mr Lawrence had returned to work as soon as he could. It reinforces his determination to work as much as he could.
Mr Lawrence suffered an initial myocardial infarction in 1995 leading him to be admitted to Sir Charles Gairdner Hospital. He was then aged 51 and would have been in full-time employment had it not been for the psychological injury and harm suffered by him as a result of the child sexual abuse. Clearly an allowance therefore must be made for a period of time during which Mr Lawrence would have been totally incapacitated for work because of his heart condition in 1995.
In 2003, Mr Lawrence underwent surgery to insert a stent in relation to ongoing heart problems. In 2003, Mr Lawrence was aged 59. He would therefore still have been working. I accept that Mr Lawrence's ongoing heart problems and the need for surgery in 2003 would have resulted in him being totally incapacitated for work for a period of time and an allowance must be made for that in the assessment of his loss of earning capacity. However, I also note that in 2003, Mr Lawrence was continuing to perform part-time gardening work for the Hills Community Support Group.[1036] He was also continuing to perform such work in 2004.[1037] In 2005, after collapsing due to ventricular tachycardia, Mr Lawrence was hospitalised at Sir Charles Gairdner Hospital and fitted with a defibrillator. He was then aged 61 and would still have been working. Again, Mr Lawrence would have been totally incapacitated for work for a period of time because of his heart condition and an allowance must be made for that.
Although it is unclear when Mr Lawrence was first diagnosed with peripheral vascular disease a consultation record of Dr Davies of the North Street Medical Centre on 28 January 2004[1038] records a diagnosis of 'Ischaemic Vascular Disease'. Mr Lawrence was aged 60 in 2004. He would still have been working at that time. An allowance must be made for the diagnosis of that condition because it may have impacted upon his ability to keep working.
Finally, Mr Lawrence was diagnosed with chronic back pain in the mid to late 1980s following which he underwent at least three operations. His back condition would have incapacitated him for work for a period of time. He would also have been incapacitated for work while recovering from the various surgeries. The parties agree Mr Lawrence would have been totally incapacitated for work because of his back condition and the subsequent surgeries for a period of approximately 12 months. Those surgeries of course preceded, and in part, were the basis upon which Mr Lawrence was granted the invalid pension.
An entry in the Fremantle Hospital records of July 1978 records that Mr Lawrence had suffered from low back pain for five years which had recently worsened and he had been out of a job for several weeks.[1039] There is also reference to chronic strain working as a shearer and having to give up that job. The back problem was described as 'chronic'. From that record I conclude that Mr Lawrence had been suffering from intermittent flare ups of back pain over a number of years. Although there is no medical evidence which clarifies the position, I infer that the back pain from which Mr Lawrence had been suffering for some years in the 1970s relates to the same back condition for which he was operated upon in the mid to late 1980s. I accept that Mr Lawrence's back condition intermittently interfered with his capacity for work in the 1970s. It is a matter I take into account in determining what discount factor ought be applied to the assessment of Mr Lawrence's damages for loss of earning capacity from 1962 to 2010.
Although this case does not involve the assessment of damages for future loss of earning capacity and the need to consider what discount should be applied for contingencies it is, in my view, helpful in determining what Malec v JC Hutton Pty Ltd discount should be applied in the assessment of past loss of earnings to have regard to the discount for contingencies. The normal discount for contingencies is in the range of 3% to 6%.[1040] In Struthers v Harris[1041] a discount of 5% was applied to the calculation of past loss of earning capacity. In more recent times, it is not unusual that a discount for contingencies of 10% is applied.[1042] In Villasevil v Pickering[1043] Anderson J (Malcolm CJ and Grove AJ agreeing) said that the discount for ordinary contingencies is rarely more than 15% and usually between 5% and 10%.
In my view, the various factors I have identified from Mr Lawrence's life which may have impacted upon the trajectory of his working life, require a greater than the normal discount of 3% to 6%, but although they cannot perhaps be described as the ordinary contingencies, do not justify a discount beyond 10%. When I refer to the discount factor I am referring to the impact the various matters I have identified might have had on Mr Lawrence's ability to maintain full-time employment and secondly, earn a wage equivalent to the average weekly earnings. By its submissions, that Mr Lawrence worked 75% of the time and ought be awarded past loss on the basis of 25% loss of earnings, the Christian Brothers logically accept that were it not for the sexual abuse Mr Lawrence would have worked full-time. The issue they take is that he would not have earned the equivalent of the average weekly earnings. He would only have earned income from labouring semi-skilled work which is best measured by reference to the adult minimum wage, alternatively, by applying a 21% discount to the average weekly earnings figures. Therefore, the main factor to consider in determining what discount should be applied to the assessment of past loss of earnings for the period from 1962 to 1990 is whether Mr Lawrence might have earned the equivalent of the average weekly earnings.
Therefore, I apply a 10% discount for all of those other factors that pre-date 1990 which may have adversely impacted upon Mr Lawrence's working life.
Mr Lawrence left school at the age of 16 years when he was told to leave Clontarf. That outcome is therefore known. Mr Lawrence would have left school at that age whether or not he had suffered child sexual abuse. I therefore accept it is reasonable to adopt Mr Thompson's calculations of the actual income earned by Mr Lawrence on the basis of the education discount of 21%. That is, on the basis Mr Lawrence would not have completed his leaving year.
Other than the back surgeries being performed in the mid to late 1980s, it is uncertain during what period Mr Lawrence would have been totally incapacitated for work because of his back condition. I have earlier referred to the radiological reports of Dr Dalrymple to Dr Hardcastle of 18 May 1987, and Dr Varey of 10 March 1986 to Dr Hardcastle and Dr Williams of 1 March 1989.[1044]
The report of Dr Dalrymple of 18 May 1987 is clearly referring to the outcome of fusion surgery performed by Dr Hardcastle. While not so clear, the earlier report of Dr Varey of 10 March 1986 seems to be referring to an earlier fusion operation, rather than a laminectomy. Therefore those two reports apparently refer to the two back fusion operations that Mr Lawrence said he underwent and which are referred to in the pension documentation. From those reports I conclude that during 1986 and 1987 Mr Lawrence was experiencing significant back pain and instability which is likely to have incapacitated him for physical work for an extended period of time. That is also consistent with the letter from the unknown author from Royal Perth (Rehabilitation) Hospital to Dr Hardcastle on 17 March 1986[1045] who refers to Mr Lawrence's 'recent enforced inactivity resulting from his back problem'. Later in that same letter there is a reference to the difficulty in finding Mr Lawrence alternative employment because of his limited education but also noting Mr Lawrence was keen to engage in rehabilitation.
Doing the best I can, I will not allow him any damages for past loss of earning capacity for the financial year ending 30 June 1987. That is, I assess his loss on the basis he did not earn any income for the year ending June 1987 because of his back condition and would not have earned any income in that year. I therefore deduct an amount calculated by adopting Mr Thompson's calculations of $8,482 (after application of the discount of 10%) from his calculation of total past loss of earnings.[1046]
In assessing Mr Lawrence's loss of earnings, I proceed on the basis no education discount should be applied. The education discount applied by Mr Thompson was based upon his assessment of the type of work Mr Lawrence in fact performed which was of an itinerant, labouring semi-skilled nature. As I have explained, I do not accept that had Mr Lawrence not suffered the psychiatric injury he would have been limited to that work when his career path started from the age of 18 in 1962. In my view, there was every prospect Mr Lawrence would have earned an income equivalent to the average weekly earnings. He would not have been limited to or restricted to labouring, semi-skilled jobs. I therefore assess his loss on the basis that he would have earned 50% of the after tax annual amount calculated by Mr Thompson in sch C of his report. For example, in the first entry for the year ending 30 June 1963, Mr Lawrence would have earned 50% of $1,077, that is $539.
It is then necessary to apply the 10% discount to that figure to take into account the possibilities of the adverse outcomes I have identified impacting upon the income Mr Lawrence might have earned:

[737]

I now turn to assess Mr Lawrence's loss for the period 1 July 1990 to 30 June 2010 which is when he would have retired from the work he would have been fit to perform notwithstanding his back injury and other medical conditions, including his heart condition, which I accept would have interfered with and reduced his capacity to earn income.
I have earlier made findings regarding the state of Mr Lawrence's medical condition as at the time he applied for and was granted the invalid pension. Even though there is a dearth of medical records regarding his back condition it is clear it was significantly disabling. His back condition, in part, caused him to cease his employment at the relatively young age of 45. I have earlier referred to the radiology reports in 1986 and 1987 from which I have concluded Mr Lawrence would have been significantly disabled for work, and certainly for any physical work, for large periods during 1986 and 1987. As I have found, Mr Lawrence was a hard and willing worker. There was rarely an extended period of time in which he was out of work. He travelled far and wide to seek work. His work was mainly physically intensive and demanding. His back injury brought an end to him being able to perform that type of work.
In the absence of medical evidence to the contrary, I accept Mr Lawrence's evidence that once he recovered from the last fusion operation his back condition settled and became relatively stable. However, he continued to suffer intermittent back pain which is reflected in the medical records. It was an ongoing issue for him and he would have had to be careful in the activities in which he engaged so as not to cause an exacerbation of back pain. I accept Mr Lawrence's back condition placed a significant restriction on his capacity for work, certainly physical work. However, I am satisfied he was not totally unfit for work. That is indicated by the fact that he performed volunteer gardening work for the Hills Community Group for about 12 months in 2003 and 2004. He also, as a hobby, made trophies for soccer teams and also made jewellery boxes.
It is also clear that as he aged, and while he was still of a working age, that is under the age of 66, he suffered from increasing ill-health. In particular, in 1995, when he was aged 51, he suffered his first heart attack. I find that from 1995, Mr Lawrence's heart condition would also have adversely impacted upon Mr Lawrence's capacity for work.
However, and despite those medical conditions, I am satisfied that at the time Mr Lawrence ceased work and was placed onto an invalid pension, he retained a significant capacity for work which was not physically demanding. I am satisfied that by the age of 45, Mr Lawrence would probably have been in stable full-time employment. He would have acquired some workplace skills and qualifications by then, such as trade certificates. He would have gained significant experience in an industry of some kind. He had by then been taught to read and write by his wife. Even though it is unlikely he would have met his former wife if he was mentally well, it is likely he would still have married and his wife would have taught him to read or write. Even if his wife had not taught him, I believe, had he not been suffering from a psychiatric injury, it is likely he would have learned to read or write on his own initiative, perhaps by completing a tertiary course. He would not have been constantly tormented by the thoughts of child sexual abuse and been psychologically damaged. He would not have been in constant conflict with employers, supervisors and fellow workers. He would have undertaken training along the way. He would have established a reliable work history. Therefore the range of work open to him would not have been restricted to physical work. The range of work would not have been limited to the labouring, semi-skilled casual work which he actually performed.
In my view, there was a strong possibility that once Mr Lawrence became unfit for physical labouring type work because of his back injury, he would have continued to work but in a less physically demanding role. He could have worked as a storeman for Bunnings or Whittakers. He could have worked in an office type position. After he suffered his back injury and while he was in receipt of worker's compensation, Mr Lawrence underwent some rehabilitation in an attempt to retrain him for office type work. The work involved him completing and delivering orders. It required him to be able to familiarise himself with documentation. He had difficulty doing that, he said, because he was not able to properly read and understand the documentation.[1047] However, according to the 1986 report to Dr Hardcastle[1048] he was enthusiastic about the rehabilitation. In October 1999 Mr Lawrence was hopeful of working with the Hills Community. He was wanting 100 old tyres to work in his garden.[1049] When Mr Lawrence was admitted to Swan Districts Hospital in March 2001, it was noted that he was working three days a week for the Hills Support Group.[1050] In 2003 Mr Lawrence reported to an occupational therapist he was working six hours per week as a gardener.[1051] In February 2004 he was working one and a half days a week as a gardener.[1052]
If, as I think is quite possible, Mr Lawrence had obtained trade qualifications to work as a plant operator and was working as a plant operator when he suffered the back injury, he might have been able to work in a training position. He might well have been able to work in some lower/mid supervisory position.
I have earlier referred to two entries in the medical records that Mr Lawrence had worked as a printer. Although Mr Lawrence did not give evidence he had worked as a printer, or explained what the work entailed, there must have been some skill involved which he would have obtained from experience working as a printer over, according to one record, nine months.[1053]
In my view, had Mr Lawrence not been significantly incapacitated for work because of his psychiatric condition, he had a significantly retained earning capacity notwithstanding the restrictions placed upon him by his back injury. I am satisfied, given his strong work ethic, he would have exercised that retained earning capacity for as long as his health permitted. When I refer to his health I am essentially referring to his back and heart conditions. Mr Lawrence's physical health declined in his early to mid-60s. He was diagnosed with vascular ischemia in about 2004 when he was aged about 60. There was the possibility because of Mr Lawrence's increasingly poor health at that time that he may not have been able to work to normal retirement age of 66.
I am satisfied it is probable Mr Lawrence, in exercising his retained earning capacity, would still have been able to earn the average weekly earnings in some type of less physically demanding occupation. Taking into account all of those factors to which I have referred, and doing the best I can looking backwards at a time relatively distant, I apply a Malec v JC Hutton Pty Ltd discount of 35% to the assessment of Mr Lawrence's loss of earnings for the last 20 years of his working life from 30 June 1991 to 30 June 2010. Therefore I assess Mr Lawrence's loss of earning capacity for that period as follows:

[743]

Pursuant to s 32 of the SCA, Mr Lawrence claims interest on all his past loss from the date the loss occurred until judgment.[1059]
The Christian Brothers deny Mr Lawrence's entitlement to interest on any past loss awarded to him and submit there is no power pursuant to s 32 to award interest on past loss.[1060]
Normally, in the assessment of damages for personal injury interest is awarded on past economic loss as a matter of course. Rarely is there any dispute as to a plaintiff's entitlement to be awarded interest on past loss. Nor is there usually any dispute about the method of calculation of the award of interest on past loss.[1061]
However, in this case, the Christian Brothers argue that upon a proper statutory construction of the amending legislation which enabled Mr Lawrence to pursue a cause of action against the Christian Brothers which was formerly barred by the Limitation Act 1935, the statutory limitation period for commencing proceedings in respect of the cause of action having expired, there is no power to award interest pursuant to s 32 of the SCA. The Christian Brothers argue that the amending legislation places the parties in the position they would have been had proceedings been commenced in respect of the cause of action at the time the cause of action arose, or at least before it expired by operation of the then limitation law.[1062]
The Christian Brothers argue that because the right to be awarded pre-judgment interest on past loss only arose when s 32 of the SCA was amended, which came into effect on 20 June 1983, there was no right to be awarded interest, nor any corresponding liability to pay pre-judgment interest, when Mr Lawrence's cause of action arose or accrued in the 1950s or 1960s.
Principally, the Christian Brothers argue that the 1983 amendment to s 32 of the SCA, which permits an award of interest on past loss, does not operate retrospectively. Therefore s 32 does not permit a plaintiff to recover interest on past loss in respect of actions which accrued prior to 20 June 1983.

[800]

The Christian Brothers submit the term 'liability' in s 15B(3) is broad enough to cover any type of obligation to pay at law or in equity and, while a claim for interest, in itself, is not a cause of action, it is covered by the term 'liability'. It is further submitted that on a proper construction of s 15B(3), the liability of a current office holder only goes so far as the liability the original office holder 'would have had'. Therefore, it is submitted, it follows that the current office holder's liability must be determined by reference to the original office holder's liability as the law stood when the cause of action accrued. Mr Lawrence's cause of action accrued, at the latest, in 1960. As the court had no power in 1960 to award interest in respect of past loss it must follow, it is submitted, there is no power to award pre-judgment interest in respect of past loss for a child sexual abuse cause of action. Section 15B(3) places Mr Lawrence in the position he would have been had the action been commenced at the time the cause of action accrued, that is, in 1960. Senior counsel for the Christian Brothers also points to s 15D(3) which is of similar effect to s 15B(3).[1067]
In summary, it is submitted there is no power to award pre-judgment interest, either before or after 20 June 1983, because there was no power to award interest at the time the cause of action accrued in 1960.
Further, it is submitted s 32 does not have retrospective effect. It is also submitted I am not bound by the Full Court of the Supreme Court decision in Brasser v Graham & Graham.[1068] Senior counsel submits that that authority is confined to pending proceedings when the amendment was made.[1069] Brasser v Graham & Graham and the earlier cases do not deal with a cause of action which accrued and expired before the 1983 amendment was made, which was later resuscitated by the Limitation Act amendments.
I now turn to consider the Western Australia Supreme Court authorities which considered the construction of s 32 as amended in 1983.

[819]

Harper v Phillips was decided nearly nine months after McQuillan v J F Thomson was decided. The trial was heard in the District Court on 23 June 1983, three days after the amendment to s 32. The trial judge held s 32 had no application to the cause of action arising before 20 June 1983 and refused to award pre-judgment interest.[1078]
The Full Court overturned the trial judge's finding that s 32 had no application to the case and in the exercise of the discretion awarded interest on some items of past loss. Burt CJ, referring to reasons expressed in a number of recent decisions of the court, held that s 32 gave power to award interest. When considering whether the discretion to award interest ought be exercised, Burt CJ acknowledged that s 32 'exposes the defendant to an additional liability'.[1079]
The cause of action accrued on 24 August 1979 when Ms Harper was injured in a motor vehicle accident. She later died but the action survived for the benefit of her estate.[1080]
Each of the other two justices, Wallace J and Smith J, although not dealing with any issue of statutory construction, awarded interest on past loss. Wallace J,[1081] referring to the discretionary nature to award interest pursuant to s 32, referred to a judgment of Burt CJ in Gummow v Callaghan.[1082] In that case, the amendment to s 32 came into operation seven days after the trial. When judgment came to be delivered, the plaintiff moved to amend the statement of claim to plead a claim for interest but the trial judge ruled that because judgment had already been given he would not hear the application and that even if he had heard the application, he would not allow it. Burt CJ held that the trial judge did have power to hear the application and had power to award interest. However, in the exercise of his discretion, in circumstances when the power to include interest only arose after trial and there was no special ground for exercising the discretion beyond the general ground that the plaintiff had been out of his money, determined it would not be fair to the respondent to award interest and declined to do so.[1083]

[836]

Therefore, Moffitt J, held that there was power to award interest pursuant to s 94(1) for causes of action accruing before the section came into operation but in the exercise of his discretion, decided it would be unfair to award interest prior to the commencement of the statutory provision.
I am of course bound by the principle of legal precedent, or stare decisis, to follow a decision on point from a higher court, that is, the Full Court of the Supreme Court of Western Australia (now the Court of Appeal). Although I am not bound by a decision of a Supreme Court judge sitting as a single judge, I should also follow that decision, unless I form the view it is clearly in error. I am bound to follow a Full Court decision, whatever my views might be about the correctness of the decision.
In my view it is inappropriate that a judge of this court express a view as to the correctness or otherwise of a decision of the Full Court the judge is bound to follow. Having said that, I am not persuaded that the line of authority in the cases in which Burt CJ presided is in error. Nor am I persuaded I am not bound by the Full Court decisions because they can be distinguished from the case before me. In my view there is no basis upon which those cases can be distinguished from the circumstances of this case. Senior counsel for the defendant submits that the principle which emerges from those cases is confined to existing proceedings, that is, court actions already commenced prior to the amendment to s 32. While I accept the cases only concern proceedings which had already been commenced, i.e. pending proceedings, when the amendment came into operation on 20 June 1983, the principle for which those cases are authority is that s 32 allows the awarding of interest in any cause of action which arose prior to 20 June 1983.
The principle is not confined to causes of action in respect of which court proceedings had been commenced prior to 20 June 1983. If s 32 allows the awarding of interest in respect of a cause of action which had arisen before 20 June 1983 in respect of proceedings which had already been commenced, consistently, s 32 also allows the awarding of interest in respect of which a cause of action was already existing and which had not expired but in respect of which court action had not yet been commenced. It would be illogical that if court proceedings were commenced after 20 June 1983 in respect to cause of actions which had arisen before 1983, s 32 did not allow the awarding of interest but if, fortuitously, proceedings had been commenced in respect of a cause of action which had arisen at the same time, interest was able to be awarded.
In my view if proceedings were commenced after the amendment to s 32 came into operation there would be a stronger reason for the awarding of interest than if proceedings were commenced prior to the amendment, because the defendant could not say, unlike a defendant against whom proceedings had been commenced prior to the amendment, that it did not expect to have a liability for the payment of pre-judgment interest.
In my view upon a proper statutory construction of the words 'for the whole or any part of the period between the date when the cause of action arose' s 32(1) of the SCA permits the awarding of interest from a time before the commencement of the amendment on 20 June 1983 if the cause of action arose prior to that date. The clear and unambiguous meaning of those words is that the section operates retrospectively, that is, to the time when the cause of action arose, if it arose prior to 20 June 1983.

[841]

In both her written submissions and in her oral submissions senior counsel for the State apparently accepted there was no basis upon which Brasser v Graham could be distinguished from the case before me and I was bound to follow it. It was submitted that Brasser v Graham was decided in error, but that can only be determined by the Court of Appeal. It was submitted that the subsequent decision of the High Court in John Pfeiffer is inconsistent with the analysis in Brasser v Graham and it is therefore open to this court to conclude that John Pfeiffer requires the conclusion that because s 32 affects the measurement of the defendant's liability, and therefore has substantive effect, it must follow from the presumption against retrospectivity that s 32 should be construed as only affecting liability for causes of action accruing after 20 June 1983 when the amendment came into operation.[1090]
The doctrine of precedent by which I am bound to follow a decision of the Full Court of the Supreme Court was explained by the Full Court of the Federal Court in Warramunda Village Inc v Pryde:[1091]
1. There is a second reason why the trial judge was bound by the decision of the Full Court. According to the doctrine of precedent, a court is bound to follow the decisions of courts superior to it in the same hierarchy. Some decisions, however, do not have the strength of an authoritative decision. A decision which is per incuriam is an example. A per incuriam decision is a judgment given in ignorance of some authority, or statutory provision, which, had it been referred to, would have resulted in a different decision: Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718; Miliangos v George Frank (Textiles) Ltd [1976] AC 443.
2. It seems to me that the decision of the Full Court was per incuriam. It overlooked both relevant and binding authority which, if it had been applied, would have required a different result. Even so, the trial judge could not ignore the decision. The reason is given in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166. There Moffitt P (with whom Glass JA agreed) said (at 177):

[843]

I am not persuaded John Pfeiffer is inconsistent with Brasser v Graham and that I am bound to follow John Pfeiffer rather than Brasser v Graham and rule that s 32 only applies to causes of action which accrued after 20 June 1983. I note that in McQuillan various cases, including Maxwell v Murphy, dealing with principles concerning the presumption against retrospectivity were cited before Burt CJ, so he clearly had regard to the matters subsequently considered in John Pfeiffer.
Further, although in Pavich v Bobra Nominees Pty Ltd, French J acknowledged that laws providing for the award of interest on damages from the date that the cause of action arose are substantive and not merely procedural, referring to Simonius Vischer and Co v Holt, which held that such a provision is a substantive provision to which the presumption against retrospectivity applies, still held that upon a proper statutory construction, s 32 has retrospective operation.[1092] Such a construction did not depend upon a characterisation of s 32 as procedural.
Neither am I persuaded that the defendant's reliance on what it submits is the proper construction of the term 'liability', in s 15B(3) of the CLA assists it. In my view the amendments to the Limitation Act and the CLA have the effect of placing the office holder from 1960 in the place of a statutorily created office holder, or hypothetical office holder, in 2019 who was able to be served with the writ of summons which commenced these proceedings. The liability of the office holder is not the liability as it existed in 1960 but the liability currently, that is, as the law currently exists. In 1960 Mr Lawrence had a cause of action tort against the then office holder. In 2020 he has the same cause of action against the current office holder.
The amendments made by the amending legislation are intended to properly compensate victims of child sexual abuse.[1093] The aim of the amendments to the CLA was to provide a legal basis for commencing an action against institutions in the name of the current office holders for historical sexual abuse.[1094] The amendments provide that any liability that a former office holder would have had in relation to the 'cause of action' is taken to be held by the current office holder.[1095] Therefore if there was a cause of action in tort in 1960 against the then office holder, there is a legal basis for a plaintiff to now bring an action in relation to that tortious cause of action against the current office holder.
The remedy for a cause of action in tort is damages. Damages are assessed at the time of trial.
In my view it follows that Mr Lawrence's damages are to be assessed in accordance with the law as it currently stands. It follows that there is an entitlement to pre-judgment interest on past loss pursuant to s 32(1) of the SCA which applies to all proceedings commenced in this court.
Parliament, when it enacted the amending legislation, must be taken to have known the existing law as to the awarding of pre-judgment interest. As I have previously explained,[1096] except for s 10A, the provisions of the CLA which limit the basis upon which damages can be awarded to a plaintiff in a personal injuries action do not apply to Mr Lawrence's action and his claim for damages is to be assessed having regard to normal common law principles. When the amending legislation was enacted, as a part of the normal common law principles which applied to the assessment of damages for personal injury, a plaintiff was entitled to be awarded pre-judgment interest pursuant to s 32 of the SCA.
Had Parliament wanted to limit or prohibit the operation of s 32, it could easily have done so by making that clear in the amending legislation. It did not do so. The absence of such a limitation provides further support for construing both s 32 and the amending legislation as not limiting the power pursuant to s 32 to award pre-judgment interest on past loss.
In summary, I find on the basis of Brasser v Graham, by which I am bound, I have the power pursuant to s 32 of the SCA to award pre-judgment interest on past loss from the time the cause of action arose. Such a construction is consistent with the clear and unambiguous meaning of the wording of s 32(1), 'for the whole or any part of the period between the date when the cause of action arose'. Therefore although s 32 does operate retrospectively it does so because of the language of the section.[1097] In arriving at that conclusion it is unnecessary to consider cases concerning what is a substantive and what is a procedural provision and the cases concerning the presumption against retrospectivity. Neither does the wording of the amending legislation affect or impact upon that conclusion in the circumstances of Mr Lawrence's claim for damages.
In my view I have power pursuant to s 32(1) of the SCA to award pre-judgment interest to Mr Lawrence on his past economic loss, essentially his past loss of earnings.

[857]

Some account ought to be taken of the defendant's conduct in not seeking a stay, in the balancing exercise involved in assessing interest, if it is seen as available.
I readily accept that the amendments to the Limitation Act and CLA lifting the limitation periods in relation to child sex abuse actions and allowing the victims of such abuse to now issue court proceedings are extraordinary. However, I do not consider that is relevant to the exercise of a discretion to award pre-judgment interest. It is certainly not a reason to decline to exercise the discretion to award pre-judgment interest.
Subject to what I later explain, I accept that any redress or payment made by a defendant to a plaintiff is relevant and ought to be properly taken into account when considering whether and, if so, how the discretion should be exercised. Any award of pre-judgment interest should be adjusted to reflect that a defendant has already made some payment to a plaintiff. However, the fact that a payment was made is not a reason to decline to exercise the discretion. By s 92 of the Limitation Act and s 15K of the CLA, prior compensation payments must be taken into account by a court when making an award of damages by deducting an amount equal to the amount of any compensation payment made in respect of child sexual abuse. Therefore, the assessment of the award for pre-judgment interest must reflect any payment already made.
The parties have agreed that pursuant to s 15K the sum of $110,000 is to be deducted from any award of damages made by the court.[1100] In total, Mr Lawrence has received compensation payments of $197,000 comprised of:
- a payment of $27,000 from the Christian Brothers in or about 1996;
- an ex gratia payment of $45,000 pursuant to the Redress WA scheme in 2010; and
- a payment of $125,000 from the Christian Brothers to Mr Lawrence in or about 6 October 2015.
I do not consider the effect of the awarding of pre-judgment interest upon the Christian Brothers whose organisation and membership has changed since the time of the accrual of the cause of action is a relevant consideration. The delay in commencing proceedings is of course contemplated by the amending legislation. No fault can be attributed to Mr Lawrence by reason of the commencement of these proceedings in 2019. Certainly he did not delay in commencing proceedings once the amendments commenced operation on 1 July 2018. Once commenced, the action has proceeded on an expedited basis. Liability was only formally admitted by the defendant on the morning of the first day of the trial. There will self-evidently normally be a long period of time over which an award of pre-judgment interest can be calculated. No reason has been advanced why the mere fact of the long period of time over which pre-judgment interest can be calculated is a reason to limit the way in which the discretion to award interest should be exercised.
The fact that the Christian Brothers have not sought to stay these proceedings is not in my view a relevant consideration in deciding whether pre-judgment interest ought to be awarded. It is a submission which is difficult to understand. Necessarily, by reason of the period of time which has elapsed since Mr Lawrence's cause of action accrued, both parties will face difficulties and challenges in such claims which have been permitted by the amending legislation. In circumstances where a plaintiff will generally be elderly and often in ill health with a limited life expectancy, it is difficult to envisage circumstances in which an application for a stay could be justified or be granted. There was no suggestion in this case that an application for a stay was ever contemplated, or that there was any proper basis for such an application. The Attorney General made it clear in his Second Reading Speech that the legislative reforms 'rely on a measure of cooperation on the part of institutions'.[1101] While the Christian Brothers may retain a right to apply for a stay of legal proceedings, no doubt the encouragement for them to cooperate to enable survivors of childhood sexual abuse to bring claims for damages would be foremost in their minds in deciding whether to make such an application. The Christian Brothers deserve no credit for not applying for a stay of proceedings.
The sorts of matters which were considered in the Supreme Court cases as being relevant to the exercise of the discretion whether to award pre-judgment interest in the context of legislative amendment which created a liability in defendants to pay interest when none previously existed, is not relevant to this case. When the action was commenced the defendant knew that it faced a potential liability for pre-judgment interest. That is so notwithstanding the submission made that there is no power pursuant to s 32 SCA to award interest. Unlike the earlier cases at the time s 32 was amended, the Christian Brothers have not been taken by surprise that it faced liability for a claim for pre-judgment interest.
An award of pre-judgment interest is 'an essential element in the achievement of true compensation' for damage suffered. The purpose of an award of interest is to properly compensate a plaintiff for the loss that they have suffered by being kept out of the judgment sum from the date when the loss commenced.[1102]

[862]

As can be seen, there is a reasonably significant difference between calculations based on an average interest rate over the whole period of the loss and the more precise calculations as detailed in the schedules to the report. For example, in relation to the calculation based on an average interest rate of 8% on a total loss of $907,306, and deducting social security payments, there is a difference of nearly $575,000 between the two different methods of calculation.
In the assessment of damages for loss of earning capacity, any social security payments received by Mr Lawrence must be ignored on the assumption that such payments are recoverable.[1105]
Neither counsel has made submissions as to the correctness of Mr Thompson's allowance for the social security payments received by Mr Lawrence in the calculation of pre-judgment interest. In my view as a matter of correct legal principle, the social security benefits received by Mr Lawrence should be taken into account in the assessment of damages for pre-judgment interest on past losses pursuant to s 32 of the SCA. As I have explained, the awarding of interest on past loss of earnings is to compensate an injured plaintiff for being deprived of the benefit of having his money over a period of time in which the loss was suffered. If during the period over which the past loss was suffered, Mr Lawrence has received pension payments, he has not suffered the full impact of the loss. Therefore in the calculation of interest on the past loss, the receipt of the pension entitlements must be taken into account. That is so even though the pension entitlements are ignored in the assessment of past loss of earnings and even though there is likely to be a requirement that the pension payments, or some part of them, be refunded.
In summary, I accept the correctness of Mr Thompson's allowance for the pension payments received by Mr Lawrence in the calculation of pre-judgment interest.
In my view, the calculation of pre-judgment interest should mirror the way in which I have approached the assessment to past loss of earnings. Accordingly, I assess pre-judgment interest on the basis of the loss of earnings from 1 July 1962 to 30 June 1990, a period of approximately 28 years. The next period over which interest is calculated is on the past loss (excluding superannuation entitlements, but deducting pension benefits) from 1 July 1990 to 30 June 2010, the interest being calculated on that loss to 2020, a period of approximately 30 years. Thereafter, a further calculation of interest is made in relation to loss of superannuation benefits from 1 July 1993 to 30 June 2010, the interest again calculated until 2020, a period of approximately 27 years.
According to sch A to Mr Thompson's report, the average interest rate from 1963 to approximately 1990 was about 8%. Thereafter the prevailing interest rate was 6%.
By O 36 r 20 of the Rules of the Supreme Court 1971, in calculating interest for the purposes of s 32 the court may use, as a guide, the rate of interest prescribed from time to time for the purposes of s 8 of the Civil Judgments Enforcement Act 2004 (WA). Pursuant to s 8(1)(a) of the Civil Judgments Enforcement Act interest is to be paid at the rate prescribed by the regulations. By reg 4(1) of the Civil Judgments Enforcement Regulations 2005 the prescribed rate is 6%.
In my view it is appropriate to adopt an interest rate of 6% over the entire period in which the loss was suffered.
Given I propose to assess pre-judgment interest for different periods, I do not rely upon Mr Thompson's schedules in the calculation of pre-judgment interest. I do however adopt Mr Lawrence's calculation of the pension payments received by Mr Lawrence of $232,000,[1106] which I understand is calculated to the end of January 2020. To that figure, I would add a further sum of $1,600 which is the approximate pension payment Mr Lawrence would have received to the end of February. Therefore, the amount of pension entitlements to be deducted in the calculation of pre-judgment interest on past loss is $233,600.

[864]

In that calculation I have not had regard to the fact that Mr Lawrence has received a total of $197,000 in various compensation payments in respect of which the sum of $111,000 must be deducted pursuant to s 15K of the CLA in the award of damages to Mr Lawrence.[1108] Of the $110,000, $26,000 was paid in 1996, $22,500 was paid in 2011, and $62,500 was paid to Mr Lawrence in 2015.
Although it was agreed between the parties that the sum of $111,000 must be deducted pursuant to s 15K of the CLA, the question of whether the compensation payments made to Mr Lawrence should be taken into account in the assessment of pre-judgment interest was not the subject of any submissions from either counsel, presumably because both counsel accepted the compensation payments ought not be taken into account in the calculation of pre-judgment interest. In my view, the compensation payments should not be taken into account in the calculation of pre-judgment interest on past loss of earnings. To take those payments into account in the calculation of pre-judgment interest would, in effect, result in the payments being deducted twice from the award of damages. However, in determining, in the exercise of my discretion, what award for pre-judgment interest should be made, it is useful to calculate the interest on past loss by making an allowance for the payment of $111,000 by reducing the past loss on which interest is calculated. Most of the deductable payments were made to Mr Lawrence after 2010 when he would have retired upon reaching the age of 66 and was no longer earning income. Mr Lawrence therefore had the benefit of the major proportion of the payments made to him from shortly after he retired which reduces the full impact of him being deprived of the benefit of his earnings even though he would no longer be working and earning income. If the payments made to him were regarded as an advance payment of interest on his loss of earnings, an alternative calculation of interest on past loss is as follows:

[866]

Neither of the above figures is meant to represent a precise calculation of the entitlement to pre-judgment interest on past loss. It is an approximate, broad brush calculation. It remains for me in the exercise of my discretion to determine what amount should be awarded for pre-judgment interest on past loss. In exercising that discretion I have regard to the quite significant disparity between the more precise calculations prepared by Mr Thompson in sch A and sch B of his report and the calculations based upon average interest rates over the period of time. The basis upon which I have calculated interest on past loss results in a reduced figure for pre-judgment interest because it is not calculated on the basis that the entire past loss of earnings is over the whole period of 58 years.
Having regard to those matters, I believe to award interest in the sum of $434,220 represents overcompensation for Mr Lawrence and the figure must be discounted. Doing the best I can, I award Mr Lawrence the sum of $400,000 for interest pursuant to s 32 of the SCA on the past loss of earnings.
Although no issue was raised by either counsel, it is in my view necessary to consider whether there is an entitlement to interest on past loss of superannuation benefits from the date an employer was required to make superannuation contributions. It might be argued that because an employee was not entitled to access his superannuation until he retired, in Mr Lawrence's case at the age of 66, interest should only be calculated from the date of retirement. However, in my view, interest should be calculated from the date when the contributions would have been made, because Mr Lawrence has been deprived of the superannuation contributions being invested on his behalf. Consistent with the principle of why pre-judgment interest is awarded, to compensate an injured plaintiff for being deprived of the money to which he would have been entitled had he not been injured, interest on loss of superannuation contributions ought also be awarded to recognise the injured plaintiff has been deprived of the benefit of those contributions being invested on his behalf over his working life so that he would have received the benefit of a capital sum upon reaching retirement age. An award of interest on past loss of superannuation contributions properly recognises and compensates the loss suffered by Mr Lawrence_._

[867]

Mr Lawrence claims damages for future medical expenses, largely based upon the opinion of Dr Shub in his report of 2 January 2020[1109] that Mr Lawrence would benefit from psychotherapeutic treatment with an initial 20 sessions of therapy at a cost of $250 per session. Dr Shub was also of the view that Mr Lawrence will require ongoing psychiatric management with fortnightly psychiatric consultations at $400 - $500 per hour. An amount of $46,895 is claimed.
While the basis of and the claim for future medical treatment was not pressed in closing by Mr Lawrence's counsel, it was not abandoned.[1110] The cost of counselling from a psychologist was claimed for the next four years.[1111]
There is no evidence Mr Lawrence was receiving psychological counselling or psychiatric treatment. While I accept that Mr Lawrence would benefit from psychological counselling and regular psychiatric management of his condition, the impression I gained from Mr Lawrence's evidence, and also from his interaction with medical professionals as revealed in the medical records, is that it is unlikely that Mr Lawrence would seek any regular treatment. When in the past Mr Lawrence has sought medical treatment, it is normally because of a situational crisis and his inability to cope with a stressful situation. He has often presented to a hospital or a doctor when he has become intoxicated or has taken a drug overdose. Once the crisis has settled, he does not seem to have regularly sought treatment for his psychiatric condition. A symptom of his condition is he becomes easily frustrated and irritated. It also seems to me that because Mr Lawrence's physical condition is rapidly deteriorating the need for medical treatment to treat those conditions, principally his peripheral vascular disease and coronary heart disease will require periods of hospitalisation, thereby reducing the likelihood that Mr Lawrence would seek any psychiatric treatment or psychological counselling.
To be entitled to an award of damages for future medical treatment expenses, the treatment must not only be necessary to treat the injury, but the plaintiff would also incur the expense, in other words, receive the treatment. Although I am not persuaded Mr Lawrence would receive treatment, and incur the expense, as claimed by him. I accept he will receive some treatment.
I award on a global basis the sum of $5,000 for the future medical treatment expenses.
In relation to the expense of future medications, the claim is based on the advice given by Mr Lawrence's general practitioner, Dr Martin, to Dr Shub which is set out in Dr Shub's report of 2 January 2020. However, that part of his report was by agreement between the parties redacted. The amount of $6,453.39 is claimed. There is therefore no medical evidence as to the medications Mr Lawrence needs and is taking. Mr Lawrence did give some evidence that he has been prescribed and is taking antidepressant medication.[1112] There is no evidence as to the cost of the medication.
Doing the best I can, I allow the sum of $1,000 for future medication expenses.

[925]

From the late 1930s to the late 1950s, in visitation reports about various Christian Brothers institutions, including Clontarf and Castledare, there are various references to sexual offending by various brothers against boys and the action which was recommended or taken in response to the reports.[1137] It is unnecessary to detail all of those reports and what is recorded. I accept there were reasonably regular reports of, at the very least, concerning behaviour by some Brothers towards children, and at the very worst, serious sexual offending against children. Viewed from the view point of today most of the matters reported should have been referred to the police. At the very least, far stronger action should have been taken and Brothers ought to have been dismissed and not permitted to have any further contact with children.
An example is how the Christian Brothers dealt with Brother Vincent Keenan. The first mention of Brother Keenan's offending is a letter from an unknown author from the Christian Brothers training college in Mt St Mary Strathfield, New South Wales, dated 19 April 1940 to the Brother Superior General[1138] in which the author informs the Brother Superior General that several years ago Brother Keenan wrote to the author about difficulties he had of a moral nature and whether he should seek a dispensation. Advice was given to Brother Keenan that if he could observe the last clause in Constitution 91 and be faithful in prayer he should continue.[1139] However, Brother Keenan did not keep the rule and offended. He was counselled by priests and said he was unfit constitutionally for the life. The author endorsed an application for disposition and advised the Brother Superior General that Brother Keenan would write to him that week.
It seems that Brother Keenan did not apply for or was not granted a dispensation, because a later letter from Brother Hanrahan from the Strathfield training college dated 15 May 1941 to the Brother Superior General[1140] informed that Brother Keenan had acted indecently towards a boy at his last place of abode. Brother Keenan confirmed the correctness of the report and said he was taking every precaution. However, Brother Hanrahan said the matter was considered in Council and by 3 to 2 it was decided to report the matter to the Brother Superior General. Brother Hanrahan referred to an earlier incident in 1929 in Bundaberg, noting that the view the Council then took was that there was no evidence that a wrong action would have occurred. Brother Hanrahan noted that, although there was no record, he recalled Brother Keenan was charged and he assumed a warning was given. He also referred to giving Brother Keenan a first warning 'last year'.
Brother Keenan remained working as a Christian Brother and continued to sexually abuse boys. In a letter to the Brother Superior General dated 3 June 1946 the Strathfield author informed that Brother Keenan was again in serious trouble having interfered with a boy at Lewisham, and noting the similar behaviour in 1941. It was noted that Brother Keenan had his dispensation but refused to accept it. It was proposed that Brother Keenan would be sent to a retreat and he would make up his mind about applying for a dispensation. Instead Brother Keenan said that when he was previously in trouble he made as strong a resolution as possible to avoid trouble but still lapsed. The author acknowledged that the probability is against Brother Keenan not again lapsing. There is also reference to Brother O'Connor who, it is implied, has also interfered with boys.[1141]
There appears to be no further references in the documentation to Brother Keenan and, given the observations of the author of the letter, it seems likely that Brother Keenan accepted a dispensation and left the Christian Brothers.
A visitation report dated 13 July 1950 regarding Clontarf records that three of 'our Institutions' have recently come under criticism for the number of 'retarded boys' in the institutions and refers to the need to do justice to the boys and that their reputation as 'educators of youth' demanded something be done. There was a need for the Superior to ensure that enlightened methods of teaching are used and that progress was being made.[1142]
In a letter to the Brother Provincial of 9 November 1953 there is an acknowledgment that harm, at least of the moral nature, might be caused to a boy who is sexually abused.[1143] The author, relevantly, observes:

[931]

There are a number of visitation reports and letters concerning Clontarf from 1956 to 1960 which is during the period when Mr Lawrence was a resident at Clontarf.[1147] It is unnecessary to go into all the detail regarding the contents of the reports and correspondence.
A visitation report of 18 July 1957 expressed concern about boys being permitted to enter Brother's rooms. Special mention was made that Brother Angus was at fault in permitting boys to enter his bedroom and he was given to understand that a serious view was taken of such conduct.[1148] In a response to the visitation report, Brother Garvey wrote to Brother Doyle on 31 July 1957 expressing his concern about boys being allowed to go into Brothers' bedrooms and spend considerable time there.[1149]
In a letter to the Brother Provincial, Brother Garvey acknowledged that the abuse by Brother Smith, while a Brother at Castledare in 1959 when he admitted touching the private parts of boys, 'never seems to be very far way. And it does so much dreadful harm - especially to the boys concerned, and to others who may hear of it'.[1150] Brother Smith was transferred to Moonee Ponds. Brother Garvey observed that there was no other course to follow but to impress upon transgressors the seriousness of the fault and the scandal that accompanies it.
In a visitation report for Clontarf for the period 24 to 31 July 1959[1151] it is recorded that Brother Angus was charged with and reported for interfering with boys and having boys in his bedroom a couple of years ago and that both charges were denied. Recently a similar charge of dealing immorally with a boy the previous year came to the notice of the Superior. Again Brother Angus denied the charge and 'there the matter rests at present'.[1152] The report also records a complaint about Brother McLaughlin who embraced and kissed a boy in his bedroom which was reported to the Superior (Brother Doyle) who in turn reported it to the author of the report, Brother Levander. Brother Levander expressed surprise that Brother McLaughlin did not regard his conduct as 'fundamentally wrong'. It was impressed upon Brother McLaughlin the gravity of his conduct, both to himself and 'the good name of the Order'.[1153]
Brother Garvey later wrote to Brother Angus on 20 August 1959 explaining the accusation was very serious and directing Brother Angus to write to him.[1154] By letter dated 26 August 1959, Brother Angus wrote to Brother Garvey as directed accusing the boy of lying and not knowing who the boy was.[1155]
By letter dated 20 August 1959 Brother Marques was directed to respond to an allegation that Brother Marques had interfered with a boy at Castledare.[1156] By letter dated 25 August 1959 Brother Marques accused the boy of lying.[1157]
By letter dated 20 August 1959, Brother Garvey wrote to Brother McLaughlin emphasising the seriousness of his conduct of kissing and embracing a boy in his room and positively forbidding Brother McLaughlin to have a boy in his room. It was emphasised that unless there was an improvement in Brother McLaughlin's conduct he would be found unworthy to continue as a member of the congregation.[1158]
By letter dated 15 October 1959 from Brother Duffy (St Mary's, Dublin) to Brother Garvey, Provincial, St Patrick's Province, wrote:[1159]

[955]

Although largely self-serving and self-justifying, and written in 1992, the report provides some insight into the thinking and attitudes of the time when Mr Lawrence was a resident at Clontarf and Castledare.
In a report headed 'Summary of documents inspected - Christian Brothers Cases' there are references to various incidents from 1923 to 1959 involving Brothers and children and how they were dealt with, but the report states incidents involving immorality with boys are concerned with Brothers not in WA.[1171] It is unclear to me what I am supposed to make from this report and the date of the report. It was not referred to in oral submissions. It has been briefly referred to in written submissions but other than summarising some aspects of the report no explanation or analysis of the report is provided, nor is any submission made as to what I should take from the report.[1172] I therefore ignore it.
A memorandum of advice to the trustees of the Christian Brothers by C A Rimmer QC dated 25 September 1995 was tendered by Mr Lawrence.[1173] Other than extracting paragraphs from the advice which refer to Brother Murphy[1174] the advice was not the subject of any oral or written submissions. It is referred to in the defendant's chronology relevant to the claim for exemplary damages, almost in passing, as an advice on whether the response of the Christian Brothers to complaints and reports of sexual abuse between 1920 to 1960 was reasonable, but no submission is made as to how the advice is relevant to whether there is a basis for awarding exemplary damages. Although it was tendered without objection and without taking me to the advice at the time to explain its relevance, it is not in my view relevant and ought not to have been tendered. The relevant parts which have been highlighted are simply a barrister's summary from the documentation of Brother Murphy's work history, including his places of work, with the Christian Brothers, and referring to any allegations made against Brother Murphy noting there was only one document which contained an allegation of sexual impropriety against Brother Murphy which was a Scrutiny Book extract for 1943. The memorandum of advice has not been the subject of any submissions to me and I ignore it. There was no basis upon which it could have been tendered.
In his closing submissions counsel for Mr Lawrence also pointed to the Christian Brothers' constitution and rules by which they purported to be guided, and the values which they purported to extol, in support of his submissions for exemplary damages to be awarded.[1175]
From the Constitutions of the Congregation of the Brothers of the Christian Schools of Ireland of 22 June 1992 (amended 6 February 1943),[1176] chapter one entitled 'The End of the Congregation', par 2 states:

[978]

A Brother of perpetual vows cannot be dismissed unless he has been twice admonished for his offences and has failed to amend.
There must be at least three offences of the same species, or, if they are of different species, of such a nature that when taken together they manifest the perversity of the will resolved on evil; or only one continuous offence which, from repeated admonitions, has virtually become threefold.
Incorrigibility is proved when no amendment follows after two admonitions administered by the immediate higher Superior, or by another acting on his mandate. The Superior shall add to the admonitions opportune exhortations and corrections, imposing, besides, penances and other penal remedies calculated to procure the amendment of the culprit and the reparation of the scandal. The Superior is also bound to remove the culprit from the occasion of relapse, even to the extent of transferring him, if necessary, to another house where vigilance may be more easily exercised and the occasion of offending more remote. To each admonition must be added the threat of expulsion. The religious is considered incorrigible if, after the second admonition, he commits a new offence or perseveres in the old offence.
When the signs of incorrigibility are undoubted, the Superior General with his Council, having considered, all the circumstances, shall deliberate whether the case be one for dismissal. If the majority of the votes are in favour of dismissal the Superior issues the decree of dismissal; but in order that it may have effect it must be confirmed by the Apostolic See. The religious has the right to defend himself, and his defence must be faithfully entered in the acts.
In the case of grave external scandal, or of serious imminent injury to the Community, the religious may be dismissed immediately by the higher Superior with the consent of his Council, or even, if there be danger in delay and time does not admit of recourse to the higher Superior, by the local Superior, with the consent of his Council and the local Ordinary. The religious must put off immediately the religious habit; and the case must be submitted without delay to the judgment of the Holy See.

[980]

Those whom belong the duty of Visitation must remember that the object of the Visitation is to enquire if the Brothers are acting in the spirit of their vocation and observing the prescriptions of the Constitution ...
The references in some of the correspondence to the collapse of the second Vow and the reference in Brother Coldrey's report to 1953 as the peak year for second Vow problems, is a reference to the vow of 'chastity' referred to in chapters VI and VIII reproduced above.[1182]
Counsel highlights what was permitted by the regulations and by the Christian Brothers' own rules and regulations and contrasts that with how in fact Mr Lawrence and the other boys were physically disciplined. I accept the canings and strappings and other forms of physical punishment which were regularly inflicted upon Mr Lawrence and the other boys went well beyond what was permitted by the CWR and the Christian Brothers own rules and regulations, and indeed was in breach of the regulations. In particular, the canings and beatings perpetrated by Brother Doyle upon Mr Lawrence were not permitted by either the CWR or the Christian Brothers' own regulations. Even by the community standards of those times, in which children were regularly physically punished, the beatings of Mr Lawrence by Brother Doyle were a significant departure from those standards as reflected in the regulations.
Mr Lawrence's counsel submits that the documentation establishes the Christian Brothers' Executive and Superiors knew that the Brothers were sexually abusing boys in their care but did nothing to protect the boys from the abuse because they failed to take any action to prevent the abuse from continuing to occur. It is not the failure to go to police or the failure to have better procedures in place which justifies an award of exemplary damages. Rather, it is giving known child abusers unfettered power and giving those abusers, particularly Brothers Murphy, Marques and Angus, free access to Mr Lawrence. It is that failure in those circumstances, it is submitted, which warrants punishment and denunciation.[1183]
In support of his submission, counsel heavily relies upon the Clontarf visitation report for 24 to 31 July 1959[1184] which refer to reports of Brother Angus interfering with boys and also Brother McLaughlin acting inappropriately, from which I can draw the inference Brother Doyle, who was the Superior at the time, knew that child sexual abuse was occurring at Clontarf and yet took no action, or no adequate action, to prevent the abuse continuing. On the contrary, Brother Doyle, it is submitted, beat boys who reported sexual abuse in a way in which was clearly not in compliance with the regulations. It is submitted the beatings were administered in a 'sexualised fashion'. Because of the context in which the beatings were administered, they cannot be disentangled from the sexual violence perpetrated upon Mr Lawrence.[1185]
I do not accept that from that Clontarf visitation report an inference can be drawn that Brother Doyle was aware of the extent and the nature of the sexual abuse being perpetrated on both Mr Lawrence and other boys. Although there were reports of Brothers Angus and McLaughlin sexually abusing boys, the matters were formally reported and dealt with, not just by Brother Doyle but by his Superior, Brother Levander.
An unsigned statement made by Brother Doyle on 17 May 1994 was tendered by the Christian Brothers pursuant to s 79C of the Evidence Act.[1186] Brother Doyle said that it was his practice, as Superior, if he received a serious complaint in respect of a Christian Brother, such as an allegation a Brother had sexually interfered with a boy, he reported it immediately to the Provincial. If the complaint was sufficiently serious an extraordinary Visitor was sent by the Provincial to investigate and deal with the matter.[1187] In response to an allegation he had inflicted gross physical hidings and severe lashings to [CJR] on a daily basis during his time at Clontarf, including using his boots on [CJR] after he had fallen to the ground, Brother Doyle said the allegation was a 'complete and utter falsehood'.[1188] He also rejected allegations that he had assaulted and ill-treated [CJR] in various ways as 'complete nonsense'.[1189] Brother Doyle said it was very rare for him to give six straps to any boy.[1190]
Brother Doyle said that towards the end of 1956 he interviewed [CJR] about his relationship with Brother Murphy. He could not precisely recall how it was he came to interview [CJR] but thought it might have been because another staff member expressed concern about the association between Brother Murphy and [CJR]. While not remembering the actual conversation, Brother Doyle recalled that [CJR] informed him that Brother Murphy had sexually interfered with him. Brother Doyle said he was completely shocked and he had not noted anything which had raised his suspicions.[1191] Brother Doyle further said that after the allegations were reported to him by [CJR] he spoke to another boy [KL] who appeared to have a fairly close relationship with Brother Murphy. [KL] informed him that Brother Murphy had sexually interfered with him.[1192] Upon receiving that confirmation Brother Doyle wrote to the Provincial at St Kilda saying he was convinced of the truth of the allegations. He received a fairly prompt reply notifying him that Brother Murphy would be transferred from Clontarf.[1193] Brother Doyle said that he took steps to ensure that there would be no further contact between [CJR] and Brother Murphy.
Given the persistent nature of the sexual abuse perpetrated by Brother Murphy upon Mr Lawrence, and also having regard to the other forms of sexual abuse suffered by Mr Lawrence from Brothers Marques and Angus and how regularly that abuse occurred, it is, in my view, unlikely the Superior, Brother Doyle, at the time Mr Lawrence was a resident at Clontarf, would not have become aware that some form of sexual abuse was occurring. Of course Mr Lawrence was not the only young boy who was being regularly sexually abused as is evident from the evidence given before the Royal Commission about other boys being abused by various Brothers, including Brother Murphy.[1194] In the letter from Brother Healy to Brother Coldrey on 24 August 1990,[1195] Brother Healy was in no doubt Brother Murphy had sexually abused boys in Western Australia and was concerned whether he had continued to abuse boys after he was transferred to South Australia. I am satisfied the reason Brother Murphy was transferred from Clontarf to South Australia was because of reports of him sexually abusing boys.
Viewed from today's standards, where mandatory reporting of child sexual abuse allegations by teachers or boarding supervisors is a legal requirement,[1196] the transfer of Brother Murphy from one Christian Brothers institution to another, and to allow Brother Murphy to have continuing contact with children, is a matter of considerable concern. Much stronger action should have been taken. At the very least Brother Murphy should have been dismissed. He should not have been permitted to have ongoing contact with children. However, in the context of the standards which prevailed in the 1960s it would seem that it was not unusual to transfer a Brother accused of abuse from one state to another.
The documentation regarding Brother Murphy's time in Adelaide and Whyalla in South Australia seems to indicate that Brother Murphy was more closely supervised then he was at Castledare or Clontarf so to that extent, in the context of the time, the Christian Brothers did take some action against Brother Murphy rather than simply ignore the allegations and allow the abuse to continue. Had the Christian Brothers simply ignored reports of sexual abuse occurring and taken no steps, that may have provided a stronger basis for an award of exemplary damages for the purposes of punishing and condemning the actions of the Christian Brothers.
As I have earlier explained,[1197] by their amended defence the Christian Brothers admit they had over an extended period of time received reports relating to allegations of sexual abuse by Brothers against children and that they had an understanding that sexual abuse of children could have an ongoing impact on the children, which admissions apparently reflect the findings of the Royal Commission.
While the evidence does establish the Christian Brothers, through the Superior, at some point in time became aware of allegations Brother Murphy, and Brothers Marques and Angus, were abusing boys, there is no evidence which establishes they were aware of the nature and extent of the abuse. There is no evidence which establishes a Superior became aware Brother Murphy was regularly committing acts of anal rape against Mr Lawrence and other boys. When allegations of sexual abuse were put to both Brothers Angus and Marques they each denied the allegations and accused the boys of lying. It seems the Christian Brothers felt that in those circumstances there was little they could do. However it does indicate that rather than keep the allegations hidden, they did at least raise the allegations with the alleged abusers.
Neither do I think the evidence establishes that the Christian Brothers deliberately established an environment in which boys were regularly threatened and physically beaten when allegations of sexual abuse were reported for the purpose of allowing the sexual abuse to continue. Although I am satisfied an atmosphere prevailed at both Castledare and Clontarf in which boys were regularly physically beaten if allegations of sexual abuse were reported, and other boys who were being abused knew that if they also reported the allegations they would also be abused, which encouraged and allowed the sexual abuse to occur, I am not satisfied the evidence establishes a deliberate course of action was taken by the Christian Brothers' hierarchy for the purpose of allowing the sexual abuse to occur. Had I been satisfied the Christian Brothers had acted in such a way that may have provided a sufficient basis upon which exemplary damages could be awarded.
In making that finding, I have had regard to the evidence of both AB and CD who were each beaten, or witnessed another being beaten, when they reported allegations of sexual abuse.

[988]

Counsel for the Christian Brothers confirms that the office holder and authority at the relevant time was at fault in failing to take measures to ensure Mr Lawrence was not subject to child sexual abuse by Brother Murphy and the other Brothers who abused him.[1210] In relation to AB, who was an adult at the time he met with the professional standards people at the Christian Brothers, he said he did not want his family to know about the abuse which was respected by the Christian Brothers. AB was asked if he wanted to report the matter to the police but said he did not. It was not a case of suggesting the matter should not be reported to the police.[1211] The healing process in which AB participated with representatives of the Christian Brothers was an open and communicative process.[1212] It encouraged victims of child sexual abuse to report the allegations and receive compensation. The professional standards people did not attempt to discourage matters being referred to police, nor were they trying to hide anything.
Counsel also points to the assessors' report[1213] in which the assessors interviewed Brother O'Dougherty who said he 'clearly remembers [AB] at Clontarf but does not remember [AB] coming to him with any allegation of sexual abuse. He stated at the interview that he would have pursued such matter'. Brother O'Dougherty also stated the boys knew he was always available if they had any concerns and boys did come to him with their concerns but AB never came to him with allegations of sexual abuse.
The report writers, referring to the allegations admitted by Brother Murray in relation to mutual masturbation, were satisfied the allegations were substantiated but went on to note that there were difficulties reaching a conclusion about other allegations against Brother Murray because of the lack of corroborating evidence for witnesses. They also referred to AB's uncertainty about whether it was Brother Murray or Brother Marques who anally raped him, nothing that Brother Marques had passed away and therefore the allegations concerning him were unable to be examined. The report also noted that AB had stated that he had told Brother O'Dougherty about the allegations of sexual abuse.
The reports do not include any allegation made by AB about the physical and sexual abuse to which he was subjected by Brother O'Dougherty when he reported the sexual abuse of Brother Murray. Counsel submitted it would be unsafe to find a liability for exemplary damages based on AB's evidence given at trial about the abuse perpetrated by Brother O'Dougherty.[1214]
In her written closing submissions counsel submits:
1. Consideration may be given to the amount a defendant is required to pay and compensatory damages 'if they are sufficient to inflict adequate punishment ... The question emphasised in all the authorities is that exemplary damages must be calculated by what is appropriate to punish the defendant ...'. Backwell v AAA [1997] 1 VR 182 at 208.
2. There are no Christian Brothers schools and no Christian Brothers teaching in Western Australia. A different entity, Edmund Rice Education Australia, now administers and controls what were formerly Christian Brothers schools.[1215] In 2013, as a gesture of symbolic and practical reconciliation, the Christian Brothers gifted Clontarf, then valued at $26 million, to an indigenous group.[1216]
3. The Christian Brothers have already paid in the financial years ending -

[1047]

Counsel for the Christian Brothers submits that from the chronology I can find that from the 1980s the Christian Brothers began to develop an awareness about child sexual abuse and its impact upon victims, which is consistent with the evidence of Dr Shub of when the medical profession started to also develop such an awareness.[1227]
The 1993 media release issued by the Director of Public Prosecutions (DPP) explained that although a number of allegations against the same person may suggest that probably that person has committed offences there were special rules that apply to criminal trials which were relevant to the DPP's decision in 1993 not to initiate prosecutions in respect of a number of allegations. Some of those rules included the inability to join a number of charges against an accused involving different complainants in a single prosecution.
There were also difficulties in relation to 'similar fact evidence'. The fact that the complainants had been in the same institution and each alleged sexual assault was not enough for the offending to be considered as strikingly similar. The law has since been changed by the enactment of s 31A of the Evidence Act which makes such evidence more readily admissible. In 1995, the DPP again decided against prosecuting further allegations concerning certain Christian Brothers.[1228]
In 1992, the Acts Amendment (Sexual Offences) Act 1992 (WA) was enacted which amended the Criminal Code to, in effect, widen sexual criminal offences committed against children.
It is only in relatively recent times that both Parliament and the courts have gained a greater understanding of the long-term harmful effects upon children of sexual abuse. That understanding is reflected in the following observations of the Court of Appeal in a well-known criminal case VIM v The State of Western Australia:[1229]
1. It has been said on a number of occasions recently that there has been a 'firming-up' of sentences in cases involving sexual offences against children, as the courts have, over the years, gained a better understanding of the long-term effects of such offending upon the children concerned: see, eg, S v The Queen [2004] WASCA 113 at [56], [71] per Malcolm CJ and (Templeman and Miller JJ agreeing), Rogers v The Queen [2004] WASCA 147 at [54] per Templeman J and per Miller J (at [95]).
2. It is desirable to spell out in a little more detail precisely what is meant by that 'better understanding'. It is fair to observe that if one goes back more than a decade in relation to such cases, there is frequently a degree of emphasis placed upon factors such as loss of virginity or risk of pregnancy (in relation to young girls) and to considerations such as threats of force or violence. These factors remain of significance.
3. However, more information about the effects of this type of offending often emerges from the more detailed submissions now made by the State at the time of sentencing, and a pattern emerges from victim impact statements. Hypotheses about the likely effect of such behaviour on young children can be tested against evidence, which emerges at trial or which is contained in victim impact statements, from adult women who now come forward as complainants in relation to sexual offences which occurred against them many years ago, and in whose lives the effect of such offending has had time to develop.
4. In the light of those experiences, courts now understand much more clearly the destructive effect of all such offending (whether accompanied by overt violence or not) upon a child's capacity to trust others and to form relationships, and upon the child's sense of self-worth. Particularly in cases of frequent or prolonged abuse, an inability to form adult relationships, or an inability to maintain them, exaggerated doubts and fears in relation to the parenting of the complainant's own children, and disrupted schooling which adversely affects the complainant's future educational and employment prospects, are very common. Also frequently encountered in such cases are drug or alcohol abuse, self-harm, and attempted suicide.
5. In some of the past cases one can detect a sense that if an offender's wife, or other members of the family, were said to be 'standing by him', that was seen as potentially mitigating. It is now understood, however, that most child complainants feel that the abuse is to some degree their fault and that broken family relationships are their responsibility, so that the estrangement of a complainant from other members of the family which often occurs where family members 'take sides', is rightly seen now as yet another serious consequence of the offender's choice to offend in that way.
6. In cases where the offender is not a family member or trusted adult, even in a loose sense, the effect upon family relationships and the child's sense of trust is not such a significant factor, but, depending upon the circumstances, there can nevertheless be very serious consequences in terms of loss of confidence in dealing with others, and damage to self-esteem, even where there are not overt threats, force or violence.
7. The effects to which we have referred are particularly evident in cases where sexual offending against the child has been frequent and/or has occurred over a long period. It hardly needs to be said that all sexual offending against a child is reprehensible. However, where there is an isolated occurrence, then, depending upon the circumstances, it may well be that, with support, a child will be able to overcome the experience, in the way that other adverse events can be largely overcome. The difference in cases of prolonged offending against a child is that the whole of the victim's childhood and potential for normal development is taken from him or her. When one comes to consider totality considerations, then, a relevant factor is that, as the amount of offending increases, so the likelihood of very significant harm to the victim or victims of the offending is dramatically increased.
In my view that relatively recent greater understanding of the impact of sexual abuse upon a child is, to some extent, consistent with the lack of a proper appreciation by the Christian Brothers of the long-term harmful impact upon children of being sexually abused. In the 1960s, although there might have been some appreciation that sexual abuse of a child was harmful, there was not a full or proper appreciation of how harmful the abuse could be. The greater concern was the impact sexual abuse had on the moral and spiritual welfare of both the victim and the abuser.

[1053]

Because the kinds of case in which exemplary damages might be awarded are so varied, it may be doubted whether a single formula adequately describes the boundaries of the field in which they may properly be awarded. Nevertheless, the phrase adopted by Knox CJ in Whitfeld v De Lauret & Co Ltd of 'conscious wrongdoing in contumelious disregard of another's rights' describes at least the greater part of the relevant field.
In considering whether to award exemplary damages, the first, if not the principal, focus of the enquiry is upon the wrongdoer, not upon the party who was wronged. (The reaction of the party who is wronged to high-handed or deliberate conduct may well be a reason for awarding aggravated damages in further compensation for the wrong done. But it is not ordinarily relevant to whether exemplary damages should be allowed.) The party wronged is entitled to whatever compensatory damages the law allows (including, if appropriate, aggravated damages). By hypothesis then, the party wronged will receive just compensation for the wrong that is suffered. If exemplary damages are awarded, they will be paid in addition to compensatory damages and, in that sense, will be a windfall in the hands of the party who was wronged. Nevertheless, they are awarded at the suit of that party and, although awarded to punish the wrongdoer and deter others from like conduct, they are not exacted by the State or paid to it.
There is an appearance of tension between using civil proceedings to compensate a party who is wronged and using the same proceedings to punish the wrongdoer. But there is a tension only if it is assumed that '... a sharp cleavage between criminal law on the one hand and the law of torts and contract on the other is a cardinal principle of our legal system'. As Windeyer J points out in Uren, the 'roots of tort and crime' are 'greatly intermingled'. And it is not only the roots of tort and crime that are intermingled. The increasing frequency with which civil penalty provisions are enacted, the provisions made for criminal injuries compensation, the provisions now made in some jurisdictions for the judge at a criminal trial to order restitution or compensation to a person suffering loss or damage (including pain and suffering) as a result of an offence all deny the existence of any 'sharp cleavage' between the criminal and the civil law. The tension we have mentioned may therefore be more apparent than real.

[1056]

In Erlich v Leifer, exemplary damages were awarded by the trial judge against both the teacher, Ms Leifer, who was the abuser, and also against the school. The factual basis upon which Rush J awarded exemplary damages against both Ms Leifer and the school were that the school board, knowing there was a case for her to answer concerning serious allegations of criminal conduct arising out of allegations of sexual abuse of students at the school, assisted Ms Leifer, by arranging air tickets, to urgently depart Australia and fly to Israel.
Rush J also noted that he had awarded in excess of $1 million in compensatory damages but did not consider the compensatory damages sufficiently imposed a punishment on the school for the conduct which he described as deplorable. He took into account the purpose of exemplary damages being to deter both the defendant and others from similar conduct.[1234] He awarded exemplary damages against Ms Leifer in the sum of $150,000 and against the school in the sum of $100,000.[1235]
In my view the factual circumstances in that case are quite different to, and can be distinguished from the factual circumstances of this case. The deplorable conduct of the defendants was considered in the context of current behaviour and circumstances. Rush J was not dealing with historical behaviour. Nor was he required to consider what actions had been taken by the defendants to acknowledge the offensive and deplorable nature of their behaviour and make amends for it. Of course, the abuser was still alive and had fled the jurisdiction with the assistance of the school. The facts of that case are to be contrasted with the facts of this case.
In MC v Morris, which is relied upon by counsel for Mr Lawrence in support of the claim for general damages, the trial judge, Fagan J, declined to award exemplary damages, in part because of the way in which the claim had been pleaded in circumstances where the trial proceeded as an assessment of damages where default judgment had been entered against the defendant, but also on the basis that because the defendant had been convicted of the offences which gave rise to the action for damages he had already been punished.
In Amaca Pty Ltd v Latz,[1236] the Full Court of the Supreme Court of South Australia set aside an award of exemplary damages of $30,000 made by the trial judge to a plaintiff suffering from mesothelioma as a result of cutting and installing asbestos fencing manufactured by James Hardie in 1976. An award of $250,000 was substituted. The Full Court noted that Amaca was a party to a charitable trust established by James Hardie to compensate the victims of asbestos diseases caused by the company. It was noted that there was documentary evidence showing that James Hardie knew as long ago as 1938 about the risk to the health of its workers from asbestos dust and over the years that followed it became increasingly aware of the danger that it posed to customers using its products. The Full Court noted that the trial judge found that James Hardie's conduct occurred in circumstances where it was fully informed about the lethal dangers of asbestos yet failed to warn its customers, including the respondent (plaintiff), of the potential harm that might be suffered by using its products. It failed to advise them and him of known precautions that might have minimised the harm. The trial judge found that James Hardie put profit before public safety and was anything but a model corporate citizen. While the trial judge considered James Hardie's conduct in the 1970s was less egregious than it would be today, he nonetheless considered the conduct at the time was egregious. He found that the conduct of James Hardie amounted to 'reckless indifference'.[1237]
The Full Court further observed:[1238]

[1058]

In my view, the conduct of James Hardie justifying an award of exemplary damages in the sum of $250,000 is different from the conduct of the Christian Brothers in this case. As I have explained, although the Christian Brothers knew sexual abuse was being perpetrated by its Brothers upon young boys, and knew Brother Murphy had sexually abused the boys before 1962 when Mr Lawrence was taken into their care, the evidence does not establish it knew the full nature and extent of the abuse being perpetrated by Brother Murphy. Certainly there is no evidence which establishes the Christian Brothers knew of the level of abuse perpetrated by Brother Murphy upon Mr Lawrence. Although the Christian Brothers knew of allegations of some level of abuse being perpetrated by Brothers Marques and Angus, when the allegations of abuse were put to them, they denied it, as perhaps you would expect them to.
James Hardie's thirst for profits motivated it to knowingly expose the public to the risk of significant harm from exposure to the dangers of asbestos which conduct was characterised as egregious. The evidence does not establish any similar motivation on the part of the Christian Brothers by which it knowingly exposed boys in its care to sexual abuse and from which its conduct could be characterised as egregious. That of course is not to suggest the Christian Brothers' conduct was that of a model institution having the care of young children. Far from it. Their failure to take any, or any sufficient action, to prevent boys in general, and Mr Lawrence in particular, being exposed to appalling sexual abuse deserves the strongest condemnation. However I do not believe the conduct can be characterised as so egregious that an award of exemplary damages is now required to punish the Christian Brothers for their conduct in the 1960s. There is for example no evidence which suggests the Christian Brothers deliberately ignored and hid the allegations of sexual abuse so as to enable the abuse to continue. While the evidence establishes that the Christian Brothers were more concerned about and focused on what impact allegations of sexual abuse, if they became public knowledge, would have on their reputation, when they should have been more concerned about the harm being caused to boys in their care, I do not consider their conduct was so egregious that it now, nearly 70 years later, justifies an award of exemplary damages.

[1059]

I accept the submissions made by counsel for the Christian Brothers in her written closing submissions at pars 419 to 427.[1239] I accept the Christian Brothers have taken significant steps to atone for their egregious behaviour at the time Mr Lawrence was sexually abused. The Christian Brothers no longer operate as teaching or boarding institutions. They no longer have any association with children. They have gifted Clontarf to an Aboriginal organisation which now runs a well-known and well-regarded college and football academy from Clontarf. They have paid significant sums of compensation. They have made payments of compensation to Mr Lawrence. They have participated in healing and reconciliation programmes including Redress WA. They have reviewed their policies and procedures. In 1993 they issued an apology. The actions taken by the Christian Brothers are summarised in chapter 4 of the Royal Commission Report.[1240]
The conduct of the Christian Brothers must be viewed in the context of prevailing community attitudes at the time, that is, in the 1960s. Unlike in the asbestos and mesothelioma cases, the Christian Brothers while clearly understanding the type of abuse perpetrated by the Brothers constituted a sexual offence, they did not know or understand the extent to which abuse could cause harm and injury. As I have explained, it is only in relatively recent times that the medical profession, the courts and Parliament have gained a better understanding of the impact of sexual abuse upon children and how harmful it is. It was only in the 1980s that the medical profession diagnosed PTSD. It was only since then that the medical profession became fully aware of the harmful consequences of child sexual abuse. The learning and research continues. There remains some ongoing dispute between members of the medical profession, as best evidenced by the disagreement between Dr Shub and Dr Piirto, as to the impact of child sexual abuse upon a person's mental welfare.
Counsel for Mr Lawrence relies upon in particular the observations that it is appropriate to award exemplary damages to punish a defendant, emphasising that in this case, none of the abusers have been punished by the criminal law. They have all died. Although Brother Murphy was charged with criminal offences arising out of his offending against Mr Lawrence, the matters did not proceed to trial because of Brother Murphy's ill-health, who died before the matters could proceed to trial.[1241]
The offending behaviour committed by Brother Murphy and the other Brothers and people, including a teacher, working at the Christian Brothers who abused Mr Lawrence is deserving of the strongest and utmost condemnation. No one suggests otherwise. Had the actual abusers been still alive, and not been prosecuted, there is little doubt that an award of exemplary damages against them would have been justified. However, as against the individual Brothers, the abusers, there is obviously no need for personal deterrence. Nor do I consider general deterrence is relevant for the purposes of sending a message to individuals who might be tempted to abuse children in their care. There is now a much greater awareness of the evils of child sexual abuse and the harm that it causes. While the abuse perpetrated by Brother Murphy was a crime then, as much as it is a crime now, there is less opportunity for the circumstances which prevailed in the 1960s to again occur such that there is a need for general deterrence directed towards individuals.
In relation to the Christian Brothers themselves as an institution, there is also no longer the need for personal deterrence. Nor, in my view, is there the need for general deterrence directed either personally to the Christian Brothers or to similar institutions and organisations. The behaviour of the Christian Brothers, and of other institutions, has been exposed and thoroughly examined in the last few years, culminating in the Royal Commission into Institutional Responses to Child Sexual Abuse. In my view, the outcome of the Royal Commission has adequately addressed the need for general deterrence.
I also have regard to the need to punish a defendant and the need to express the court's disapprobation and denunciation of the conduct. As I have said, the conduct of the Christian Brothers during the time Mr Lawrence was in their care and since is deserving of the strongest condemnation and denunciation. However, I have regard to all of the actions and steps that the Christian Brothers have taken in recent years as summarised in counsel's written submissions reproduced above at [1009] and in the chronology. In my view, sufficient denunciation and condemnation has been publically expressed concerning the Christian Brothers' behaviour, particularly in the Royal Commission Report.
As I have noted, exemplary damages are awarded rarely. In my view, particularly because of the historical nature of the allegations and the time which has long since passed, and all of the steps the Christian Brothers have taken in recent times to acknowledge their appalling behaviour, and also having regard to the fact that the Christian Brothers no longer exist as an institution having the care of children, I am not of the view that this is one of those rare cases which justify an award of exemplary damages. Accordingly I decline to award exemplary damages.

[1109]

A District Court judge has a broad discretion to determine the costs to be paid by a successful party, including an order for indemnity costs.[1247] Despite its breadth, the discretion to award costs is not unfettered, and must be exercised judicially.[1248] The starting point in relation to an award of costs is that the court will generally order that the successful party to the action recover their costs.[1249]
In Strzelecki Holdings Pty Ltd the court explained:[1250]
1. What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case. The Court may depart from the general rule that costs follow the event and modify a costs order to take into account matters such as any unreasonable conduct of a generally successful party, or to the failure of that party on one or more specific issues. The exercise of the discretion in that way is recognised by a number of rules in the RSC, together with the practice of the Court, and authority. So, for example, if the Court is of the opinion that the conduct of a successful party - either before or after the commencement of the litigation - has resulted in costs being unnecessarily or unreasonably incurred, the Court may deprive that party of costs, either wholly or in part, and it may further order that party to pay the costs of an unsuccessful party, either wholly or in part. In the present case, Strzelecki did not contend that the issues raised by the Jorgensens, and on which they were unsuccessful, were raised unreasonably or improperly.
2. Under O 66 r 1(3) RSC, where a party, though generally successful in an action, has, by the introduction of some issue or issues on which it has failed, increased the costs, the Court may order such party to pay the costs of such issue or issues. It is well-recognised that an order that a successful party recover only a portion of its costs, where it has not been wholly successful, should not be made as a matter of course, for at least two reasons. First, it is often the case that a successful party will not succeed on every issue raised. Secondly, to attempt, in every case, an analysis of which party was successful on which issue would add uncertainty and complexity to the outcome of litigation, and add to the time and cost of costs arguments. Consequently, the power to apportion costs in this way should only be exercised where there are discrete and severable issues on which the generally successful party failed, and which added to the cost of the proceedings in a significant and readily discernible way. Furthermore, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if, by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case.
3. Where the Court decides, in the exercise of its discretion, to modify the usual costs orders to reflect the limited success of the successful party, that power will be exercised broadly, and as a matter of impression, and without any attempt at mathematical precision (which is likely to prove illusory in any event). That approach reflects the fact that it may be difficult to separate the factual and evidentiary substratum of different issues, the fact that some issues are more important than others, and the fact that some issues are subsidiary to others.

[1152]

In rejecting the submission that the effect of s 27A of the Motor Vehicle (Third Party Insurance) Act precluded the making of special costs orders Mazza DCJ held:
1. Section 27A of the Motor Vehicle (Third Party Insurance) Act is plainly designed to ensure that no agreement is reached between solicitor and client allowing for any greater reward than is provided for in any costs determination. This section is designed to protect the interests of the client and ensure, as much as possible, that clients are not disadvantaged. Section 27A makes no reference to the Court's power to make special costs orders in appropriate circumstances. Under s 215 of the LPA the question of any increase of the costs allowable under a legal costs determination is decided by the Court and not the parties and only in the circumstances set out in s 215(2) of the LPA. The Court acts to protect the interests of all parties.
2. In my opinion s 27A of the Motor Vehicle (Third Party Insurance) Act does not act as a bar to special costs orders pursuant to s 215 of the LPA.
Having regard to the then provisions of s 215 of the Legal Practice Act 2003 (WA) (which are in almost identical terms to s 280 of the LPA), Mazza DCJ held:
1. Before a special costs order can be made the Court must form an opinion about two matters. First is the amount of costs allowable in respect of a matter inadequate? Second does that inadequacy arise because of the 'unusual difficulty, complexity or importance of the matter'.
2. In considering the requirement of inadequacy, the plaintiff must demonstrate that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit that would be imposed by the relevant costs determination: Heartlink v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 at [16].
Although I am not bound by the decision of Michael Aaron James (by his next friend Rhonda Dawn James) v Grant I find the reasoning persuasive and respectfully agree with it. I am not persuaded there is a basis upon which Michael Aaron James (by his next friend Rhonda Dawn James) v Grant is to be distinguished from the circumstances here.
The defendant submits s 15L of the CLA and s 280(2) of the LPA are inconsistent with each other and that s 15L, as the later provision, must prevail. The defendant submits:[1252]
1. Section 15L uses language to make it clear that the fees a law practice can receive (by whatever means - whether directly from the client pursuant to a costs agreement or as recovered on a taxation of party and party costs where that law firm contracts with its client to take such taxed costs by way of remuneration) is limited by a costs determination.
2. In exercising the power granted by section 280(2) of the LPA to make a special costs order, section 15L of the CLA is negated where it results in a law practice receiving an amount greater than that prescribed by the Determination. Put into other words, a law practice cannot enter into a costs agreement with its client to receive from the client no more than the amounts prescribed in the Determination (as is required by section 15L of the CLA) but at the same time provide that if the Plaintiff applies for and is successful in obtaining a special costs order, the law practice is entitled to keep the difference between the amount the law practice is entitled to receive under the costs agreement and the amount recovered pursuant to a special costs order. This would result in the law practice receiving by way of reward an amount greater than that prescribed by the Determination.
I reject those submissions. In my view there is no inconsistency between the two provisions. Section 280(2) of the LPA expressly recognises that there may be circumstances where the Determination is 'inadequate because of the unusual difficulty, complexity or importance of the matter' and provides the court with the power to make special costs orders to reflect those circumstances. The Determination is made pursuant to the LPA and the report published pursuant to s 279. As is made clear by s 280(2), the Determination is subject to the power of the court to make special costs orders. The Determination must therefore be construed and understood in the context of s 280(2).
Properly construed, s 15L(2) of the CLA does not prohibit the making of special costs orders pursuant to s 280(2) of the LPA. Section 15L(2) prohibits solicitors entering into a costs agreement with a client for a greater amount than is provided by the Determination. The Determination must always be read with s 280(2) of the LPA. The Determination provides a cap on legal fees which can be charged subject to the exercise of the court's discretion to increase the cap on costs where the Determination is inadequate because of the 'unusual difficulty, complexity or importance of the matter'. The purpose of s 15L is to prevent solicitors charging costs over and above the scale costs as determined by the Determination, or by the exercising of the court's discretion to increase certain scale items.
By s 280(1)(b) the costs charged by law practices are regulated by the Determination. However, as is made clear by s 280(2), despite costs charged by law practices being regulated by the Determination, the scale of costs in the Determination, if inadequate because of the stipulated matters, are able to be increased by the court.
When addressing the purpose of s 15L(2) of the CLA, the explanatory memorandum for the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017 (WA) (the Amendment Bill) clearly recognised that the cap on legal fees provided for by s 15L(2) allows for a special costs order to be made by the court pursuant to s 280(2) of the LPA:[1253]

[1195]

Having observed that r 42A excludes O 24A r 10(4) RSC but not r 10(5A) Gething DCJ then considers what is the correct statutory construction of r 42A in circumstances where r O 24A r 10(5A) RSC is not excluded.[1257]
He suggests there are two possible constructions. The first is that r 10(5A) RSC is inconsistent with r 42A(4) DCR and therefore by r 6(3) DCR, r 24A(4) prevails to the extent of the conflict or inconsistency.[1258]
The second possible construction is that O 24A r 10(5A) RSC conditions when the court may make an order for indemnity costs in the event of an offer to which the rule applies not being accepted, but has no application when the costs order sought is that costs be taxed as between a law practice and its client.[1259]
Gething DCJ said that his preliminary view was that the first construction is the correct one but it was not necessary for him to finally resolve this issue because the plaintiff in that case did not seek indemnity costs.[1260]
In Sulub, Glancy DCJ was required to resolve the conflict between the provisions.[1261] Glancy DCJ, agreeing with Gething DCJ's reasoning, held there was an inconsistency between the DCR and SCR and that therefore the DCR must prevail. She held that r 42A(3) and r 42A(4) govern how costs are to be awarded in the District Court.[1262]
I agree there is an inconsistency or conflict between r 42A(4) DCR and O 24A r 10(5A) RSC. However, in my respectful view, the reason is more mundane and it is unnecessary to consider competing constructions of r 42A(4) DCR.
Rule 42A DCR was inserted into the DCR by Government Gazette on 31 December 2013 and became operative on 20 January 2014.[1263]
Order 24A r 10(5A) was inserted into the Rules of the Supreme Court by Government Gazette dated 4 September 2015 and became operative on 8 September 2015.[1264] Rule 10(4) was amended to add the wording 'basis, except as provided in subrule (5A)'.
Therefore r 42A DCR was enacted before O 24A r 10(5A) RSC was enacted. At the time r 42A was inserted into the DCR, O 24A r 10(4) did not make any reference to r 10(5A) because r 10(5A) had not been enacted.
At the time it was enacted the obvious purpose of r 42A DCR was to expressly provide for the procedure by which the District Court determined costs orders in relation to offers of compromise by specifically excluding O 24A r 10(4) RSC. The reason r 42A does not exclude O 24A r 10(5A) RSC is that the DCR have not kept up with the subsequent amendments to O 24A RSC, specifically the amendment to introduce r 10(5A). It does not make sense that r 10(4) be excluded but r 10(5A), which is referred to in r 10(4), is not excluded. The simple reason is that r 42A DCR has not been amended to reflect the amendment to O 24A r 10.
Therefore there being a conflict or inconsistency between the DCR and the RSC, r 42A(3) and r 42A(4), by r 6(3) DCR, prevails.
I therefore agree with the preliminary view expressed by Gething DCJ in Ellis and the view of Glancy DCJ in Sulub but for slightly different reasons.

[1212]

See also Cerini v The Minister for Transport[1267] which also referred to, with approval, Morgan v Johnson.[1268]
These principles have also been helpfully summarised by Gething DCJ in Ellis[1269] which summary was adopted by Glancy DCJ in Sulub.[1270]
I now turn to consider whether the default position applies and that the plaintiff is entitled to an order against the defendant in terms of r 42A(4) or whether I ought to make any other order in relation to the plaintiff's costs.
The r 42A offer was made at a sufficiently early stage in the proceedings, which had the offer been accepted, would have prevented the need for the trial. By order dated 23 September 2019 the action was listed for trial which commenced on 21 January 2020. The r 42A offer was therefore made after the action was listed for trial but well before the first day of trial. From sch 2 to the plaintiff's draft bill of costs annexed to Ms Connor-Stead's affidavit,[1271] it is apparent that the majority of items, from item 17 onwards, detailing the work which was undertaken in preparing the action for trial, occurred after the offer was made. Had the offer been accepted that work would have been unnecessary and the costs would not have been incurred.
The offer was clear in its terms. Although the offer did not state for how long it was open to be accepted, by O 24A r 3(3) RSC, the offer was open to be accepted for a period not less than 28 days after it was made.
Judgment after trial was entered for the plaintiff in an amount of $179,500 greater than the terms of the r 42A offer. The extent of the compromise was therefore significant. However the judgment sum ultimately awarded is not, by itself, to be used as a yard stick to measure the unreasonableness of rejection of the offer. There was at the time the offer was made uncertainty as to how a court might assess damages in this action. There was uncertainty as to how general damages for pain and suffering and loss of amenities would be assessed. There was a very real dispute between the parties as to whether the court had power to award pre-judgment interest, and if so, how such an award would be assessed. There was uncertainty as to whether exemplary damages would be awarded.
I accept that because of the various issues which were ultimately determined after trial, the defendant faced difficulties in assessing the outcome of those issues and the reasonableness of the r 42A offer and the risks of the plaintiff receiving a more favourable judgment after trial. I accept that it was reasonable for the defendant to take the view that it did in rejecting the offer. However, by itself, that is not enough to displace the ordinary rule, or the default position, that the plaintiff is entitled to his costs from the date of the offer on a solicitor/client basis. In declining to accept the offer, the defendant undertook the risk that the plaintiff would receive a more favourable judgment then the offer and the consequences which flowed from that risk. However, the hardship and difficulty in predicting the result of the trial cannot support the exercise of a discretion in favour of the defendant to otherwise order costs than on a solicitor/client basis from the date of the offer.
I also accept that the offer cannot be viewed in isolation from the circumstances in which it was made and the circumstances of the claim for damages, which I refer to in greater detail when I come to consider the plaintiff's alternative application for special costs orders pursuant to s 280(2) of the LPA.
Having regard to those factors the defendant has not persuaded me that there are adequate reasons to justify the exercise of the discretion to vary the ordinary operation of r 42A(4) DCR.

[1217]

The claim for exemplary damages formed a significant part of the plaintiff's action. In his written outline of opening submissions, Mr Lawrence sought the sum of $250,000 for exemplary damages.[1275] The submission was maintained in closing.[1276] The basis of the claim for exemplary damages is summarised in the reasons.[1277]
In its written opening submissions the defendant went into some detail regarding the principles of exemplary damages and why exemplary damages ought not be awarded.[1278] In its written closing submissions the defendant's counsel further explained the basis upon which the defendant said Mr Lawrence was not entitled to an award of exemplary damages, referring to the documentation tendered by it.[1279] The defendant prepared a detailed chronology explaining the basis upon which it submitted there was no longer a need for personal or general deterrence which is reproduced in the reasons.[1280]
As the reasons reveal[1281] extensive documentation was tendered by the defendant relevant only to the claim for exemplary damages.
In the plaintiff's closing submissions a document headed 'Volume 3 - Knowledge of the Christian Brothers re Child Sexual Abuse', which summarised much of the documentation referred to in the reasons, was provided. Considerable time would have been spent preparing that document.
Therefore considerable time would have been spent by both parties in addressing and preparing their respective cases in relation to exemplary damages with the consequential incurring of costs.
Having regard to the explanation by the Court of Appeal in Strzelecki Holdings Pty Ltd, especially at [51] - [52], I find that the claim for exemplary damages was a discrete and severable issue on which Mr Lawrence, as the successful party overall, failed, and which added to the cost of the proceedings in a significant and readily discernible way. Mr Lawrence should not be entitled to an order for costs in relation to the work performed and costs incurred in relation to his claim for exemplary damages. That is so even though I have found he is entitled to an order for indemnity costs pursuant to r 42A DCR. However, I do not consider it appropriate to make an order that the plaintiff pay the defendant the costs of and relating to defending the claim for exemplary damages, mainly because it is likely to cause too much difficulty to the taxing officer to assess what costs were incurred by the defendant in defending the claim for exemplary damages as opposed to the costs incurred by defending the overall action.
Doing the best I can, and as a matter of impression without any attempt at mathematical precision, and in the exercise of my broad discretion I order that the plaintiff is entitled to recover 90% of his legal costs from 7 November 2019 to reflect the defendant's successful defence of his claim for exemplary damages.

[1227]

As I observed in my reasons, the long passage of time between the sexual abuse inflicted upon Mr Lawrence and these matters coming to trial of approximately 60 years has caused difficulty to both Mr Lawrence and the Christian Brothers in preparing for and presenting their cases at trial.[1284] I explained in the reasons the nature and extent of the difficulties caused to each of the parties, particularly the difficulty in obtaining contemporaneous documentation, and the impact upon memories, of that long period of time. The effect of the amending legislation is that inevitably the parties to the litigation will be confronted with difficulties because of the long passage of time between the time the cause of action accrued and the matters proceeding to trial. It is a difficulty which does not normally arise in litigation because of the operation of limitation periods. The Limitation Act requires actions to be commenced within three years from the date the cause of action accrued.[1285] Of course, in relation to historical child sexual abuse causes of action, a limitation period no longer applies.
I am satisfied that the passage of time posed a difficulty for the plaintiff in this case. As I noted in my reasons, there were gaps in the medical documentation. There was no medical documentation before 1975. Also, no economic loss documentation such as pay and employment records and income tax returns were before the court. I am satisfied the absence of those records is related to the long period of time which has elapsed. I am also satisfied that the absence of those historical records caused difficulty in proving the plaintiff's case. In particular, again as I observed in my reasons, Mr Lawrence had an understandable poor memory of many matters which had occurred in his life, which may have been able to be refreshed if there was contemporaneous documentation.
I am also satisfied that the difficulty was unusual because of that long passage of time. It is not a difficulty which will usually, or normally, arise in personal injury actions because of the operation of the Limitation Act.
I am therefore satisfied that this action was of 'unusual difficulty' associated with the long passage of time from the date the cause of action accrued until the matter proceeded to trial.

[1228]

This action proceeded to trial as an assessment of damages for personal injury, liability having been formally admitted on the first day of the trial.[1286]
The claim for damages was assessed having regard to normal common law principles without regard to the restrictions and limitations imposed by the CLA.[1287]
Therefore, on one hand this action might be viewed as no more than an assessment of damages for personal injury and as not giving rise to any particular complexity.
However, in my view this action did give rise to issues of complexity, including issues which would not normally arise in a personal injury assessment of damages.
Although there was no real issue that the abuse suffered by Mr Lawrence was 'child sexual abuse', there was a significant issue at trial as to the extent to which the child sexual abuse caused or contributed to Mr Lawrence's injury and loss. That issue in part turned upon the meaning of the expression 'child sexual abuse', which was intentionally not defined.[1288]
The Christian Brothers admitted that most of the sexual abuse to which Mr Lawrence claimed he was subjected occurred and that it was child sexual abuse. However, the Christian Brothers pleaded that Mr Lawrence suffered injury and trauma caused by others matters which were not child sexual abuse, including physical and other abuse and emotional deprivation to which the Christian Brothers subjected Mr Lawrence. The resolution of that issue required consideration of what was the meaning of the expression 'child sexual abuse' and how any other trauma experienced by Mr Lawrence during his life may have impacted upon any injury and loss suffered by him.
The defendant argued that Mr Lawrence's early childhood experiences in England caused him injury and loss. It was also argued other incidents during his life, such as being a passenger in a bus which was involved in a motor vehicle accident when he was living at Clontarf in which a child died and others were seriously injured, and a further incident when he was raped by a farmer after he left Clontarf, caused him injury and loss.
The extent to which any of the matters raised by the defendant caused Mr Lawrence injury and loss was complicated by the need to examine and analyse historical documentation, mainly medical documentation.
I found that Mr Lawrence suffered from post-traumatic stress disorder and a major depressive disorder. That finding was mainly based on the evidence of the expert psychiatrist called by the plaintiff, Dr Shub.[1289]
The defendant called an expert psychiatrist, Dr Piirto, who gave evidence that Mr Lawrence suffered from an unspecified anxiety disorder and personality disorder. I rejected that diagnosis. Each of the psychiatrists prepared detailed and lengthy medical reports involving analysis of Mr Lawrence's historical medical documentation. It would have been necessary, I accept, for the plaintiff's solicitors to have spent considerable time correlating that historical medical documentation and providing it to Dr Shub.
Dr Shub gave evidence that the diagnosis of post-traumatic stress disorder is a relatively recent medical diagnosis. He also gave evidence that it is only in relatively recent times that the medical profession has gained a greater understanding of the long term harmful effects upon children of sexual abuse.
The differing views of Dr Shub and Dr Piirto were largely centred around their differing analysis of the historical medical records.
The nature of, and the basis upon which, there were differing views between Dr Shub and Dr Piirto concerned complex matters.
I find that because of the matters raised by the Christian Brothers regarding the cause of Mr Lawrence's injury and loss and the nature of the psychiatric evidence were matters of complexity within the meaning of that word in s 280(2) of the LPA.

[1229]

In relation to the meaning of the word 'importance', Martin CJ in Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) observed:[1290]
1. It is common ground between the parties that the word 'unusual' qualifies only the expression 'difficulty' and does not qualify the words 'complexity' or 'importance'. Another issue was, however, raised in argument in relation to those words, and that concerns the meaning to be given to the word 'importance'. Heartlink submits that the criterion of importance cannot be met having regard to the interests of the parties only, but must, in order to be satisfied, import an element of importance to the community.
2. I cannot see any reason in policy or principle why the word 'importance' should be construed in this way. If it had been the intention of the legislature to require the court to give consideration to an issue of community or public importance, then I think it would have been reasonable to expect the legislature to use words that would connote that meaning, such as the well-known phrase 'public importance' which is found in a number of other legislative provisions.
3. It seems to me that by reference to 'importance' in this context, the legislature is allowing the court to have regard to the question of whether the work done was appropriate to the significance of the issues that arose in the litigation. Significance can arise either because of the significance of the issues to the parties or because of the significance of the issues to other prospective parties or to the public or to the community generally. In this case, the issues raised were of considerable significance to the liquidators in the practice of their profession, and in respect of whom serious allegations were made.
In having regard to the importance of the matter for the purposes of s 280(2) of the LPA, and adopting the language of Martin CJ in Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq),[1291] I have regard to the significance of the issues to the parties or because of the significance of the issues to other prospective parties, or to the public or to the community generally.
Clearly this trial was of significance to Mr Lawrence who was claiming damages in respect of a cause of action which, until the limitation periods for child sexual abuse causes of action were removed by the amending legislation which came into effect on 1 July 2018, prevented him from proceeding with the cause of action. The damages awarded to him were in respect of psychiatric injury he had suffered since his childhood. The injury impacted upon his entire life.
The action was also of significance to the defendant. It was important for the defendant to obtain a judicial determination of how any other abuse perpetrated by it upon a child in its care was relevant to the awarding of damages. It was important for the defendant, who is the defendant in a number of actions in this court brought by other children formerly in its care, to obtain judicial determination of an award of general damages for psychiatric injury. It is likely that most child sexual abuse causes of action against the defendant will concern predominantly psychiatric injury rather than physical injury.
It was also important to the defendant to obtain a determination as to whether there was power to award pre-judgment interest pursuant to s 32 of the Supreme Court Act.
It was important to the defendant to obtain a judicial determination of how damages for loss of earning capacity might be assessed having regard to the difficulties and complexities in assessing what were a plaintiff's loss of earnings, if any, having regard to the contemporary employment, wage and social conditions many years, up to sixty years, ago and in circumstances where the plaintiff has worked and earned an income which is unable to be assessed with any precision because of the absence of wage and employment records.
Further, the matters determined in the judgment were of significance and had importance to other prospective parties or to the public or to the community generally. The amending legislation removes limitation periods in respect of all child sexual abuse causes of action, not just for institutional sexual abuse. Therefore, any person who has been sexually abused as a child, whether in an institutional setting, or by an individual such as a relative or family friend, in other words, victims of child sexual abuse committed by people convicted of crimes against them, are now able to commence proceedings claiming damages, notwithstanding the crimes may have been committed many years ago.
The determination of the issues in this matter was of significance and importance to prospective parties in relation to the assessment of damages. It may be because of the nature of psychiatric injury caused by child sexual abuse that the full extent of the abuse does not become apparent for many years which is likely to impact upon whether actions are commenced and if so, when. This decision potentially has importance or significance to the wider public or community by informing them of the ability to bring an action and of the issues which are likely to be addressed in that action.
I find that this matter was of importance within the meaning of that word in s 280(2) of the LPA.
I am satisfied that in respect of those two items in respect to which I have concluded, the scale limit is inadequate that the inadequacy was caused by 'the unusual difficulty, complexity or importance of the matter'. Therefore in the exercise of my discretion I would, in the alternative, order that the payment of the plaintiff's costs be taxed without regard to the scale item provided with respect to item 18 and item 21(i).
The plaintiff also seeks an order for the costs of two senior practitioners attending trial in addition to counsel and senior counsel. The defendant does not oppose the plaintiff's claim for costs of two senior practitioners attending trial.
In my view it was reasonable for two senior practitioners to have attended each day of the trial in addition to counsel. The defendant was represented by two experienced counsel. Also in attendance for the defendant was a solicitor.
In my view it is reasonable that the plaintiff's costs be taxed on the basis he is entitled to the costs of two senior practitioners attending trial in addition to counsel.

At a glance

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Judgment (1537 paragraphs)

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Legislation Cited (35)

Cases Cited (74)

LAWRENCE -v- PROVINCE LEADER OF THE OCEANIA PROVINCE OF THE CONGREGATION OF THE CHRISTIAN BROTHERS [2020] WADC 27 (21 May 2020)