Gregory v State of New South Wales [2009] NSWSC 559 | Case summary

Gregory v State of New South Wales [2009] NSWSC 559 | Case summary | Zoe

7 The defendant conceded that the plaintiff was entitled to damages for non-economic loss whilst he was a student at Farrer between 1991 and 1996 (a time frame referred to in the proceedings as "the Farrer years") since it was the shared view of Drs Diamond and Brown (the forensic psychiatrists called respectively by the plaintiff and the defendant) that sustained mistreatment of various kinds at the hands of fellow students during those years materially contributed to him suffering a diagnosed psychiatric illness or illnesses from at least 1994. However, in light of the considerable disagreement between the doctors as to the range of psychiatric illnesses the plaintiff suffered from at this time, including the chronology of their onset, the severity of associated symptoms and the degree to which illness impacted adversely on the plaintiff's psychosocial functioning and development as an adolescent, there was no agreement between the parties as to the quantum of such an award. 8 The plaintiff submitted that he was entitled to an award of damages on the basis that the severity of his non-economic loss, as defined in s 3 of the Act, approximated a most extreme case of its kind, as that concept is utilised in s 16(3) the Act. The defendant submitted that the severity of his loss fell well short of a most extreme case and approximated his loss at something in the order of 20 per cent of the worst case. Neither of the parties referred me to other decisions for the purpose of assisting in the calculation of damages, an approach expressly provided for in s 17A(2) of the Act. 9 The evidence bearing upon the plaintiff's claim under this head of damage came from a number of sources. The plaintiff gave detailed evidence of his experiences at Farrer. He described being subjected to a sustained campaign of terror, abuse, humiliation and vilification on a daily basis from midway through Year 7 in 1991 until he graduated from Farrer in 1996 after completing Year 12. He also described progressively more entrenched feelings of fear, isolation, hopelessness and sadness after being forced to endure mistreatment from the other students without the assistance or intervention of teaching staff over that period. He gave graphic evidence of the various measures he took in an effort to deal with his predicament including obsessive washing with hospital grade disinfectant on a daily basis from as early as 1993 in an effort to rid himself of what he experienced as contamination after being at school and in contact with his oppressors. In addition, in his senior years at high school, he cut himself with razor blades on his forearms and legs. The plaintiff's evidence and other materials detailing an extensive catalogue of his feelings of isolation, inadequacy and despair associated with the recurrence of illness in the post-Farrer years is also said to properly sound in damages for non-economic loss assuming the issue of causation is resolved in the plaintiff's favour.

10 In final submissions Mr Bridge of Senior Counsel challenged the plaintiff's reliability (and to a lesser extent his honesty) in the descriptions he gave of the type of mistreatment that he suffered at school, the period over which it extended, his reaction to it and the way it impacted upon his curricular and extracurricular activities. In short, I was invited to find that he deliberately exaggerated the duration and extent of mistreatment and his reaction to it, including the persistence or regularity of the self-harm and other compulsive behaviour. The defendant submitted that this was borne out by contemporaneous records of various kinds which reflect favourably upon the plaintiff's physical and psychological health as an adolescent and reflect favourably upon his general level of intellectual and social functioning, despite the fact that he did not apparently enjoy friendships with any of his peers and despite the fact that he was the victim of taunting and abuse at the hands of some of them. 11 The defendant also submitted that a document the plaintiff produced in 1994 in the form of a letter to Mr Adams, a school counsellor at Farrer, and Mr Adams' notes which recorded his counselling sessions with the plaintiff, were in conflict with his evidence both as to when the mistreatment commenced and its impact on him. The defendant submitted that the letter gave a different impression altogether of the plaintiff's emotional concerns and his inner conflict as an adolescent. In particular, so it was submitted, while the letter referred to being mistreated by his peers, the plaintiff's primary and stated concern was to seek help for his obsessive washing behaviour which he did not appear to associate solely with his mistreatment at school there being other sources of emotional conflict in his life. 12 By contrast, Mr McIlwaine of Senior Counsel commended the plaintiff to me as a witness whose honesty and reliability I should accept, and that the weight of any contradictory evidence was outweighed by the force and sincerity of his evidence concerning his high school experiences and the general consistency between his evidence and the documentary evidence tendered by both parties. In addition, he submitted that there is no proper or principled basis upon which to make an adverse credit finding in any event since the defendant had not complied with the rule in Browne v Dunn (1893) 6 R 67 when cross-examining the plaintiff about his high school experiences, a rule of fairness which has its current articulation in Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 as applied in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). 24 No submissions were directed to the application of the section. The defendant did refer me to Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 at 286 where Ipp JA confirmed his understanding that factual causation as provided for in s 5D(1)(a) is to be understood in accordance with established common law principles. In this case that involves an investigation into whether, as a matter of common sense and experience, and taking an appropriately pragmatic and robust approach to proof, I am persuaded that the probabilities favour a finding that the defendant's admitted negligence in breaching its duty to ensure that the plaintiff was not mistreated as a school student caused or materially contributed to his psychiatric illness as an adult. As the authorities make plain it is not enough that I am satisfied the plaintiff's condition as an adult was possibly caused by the defendant's breach of duty to him as an adolescent. I also accept that the mere fact that it is or may be impossible to exclude his illness as an adolescent as a factor in the development of his illness as an adult, or even were I to make a positive finding that his adolescent depression and anxiety added to the risk of his developing disorders of that kind at a later stage of his life, does not of itself allow for a finding of material contribution. In the absence of evidence of a credible competing cause, however, the authorities recognise that a material increase in the risk of injury from a defendant's conduct may be sufficient to ground an inference that causation is made out assuming that the inference can be safely drawn after considering all the evidence that bears upon the question. 25 I have assumed, there being no submission to the contrary, that if factual causation is established it would not be inappropriate to extend the defendant's liability to the harm so caused.

Year 7 - The plaintiff's first year at high school - 1991 35 The plaintiff gave evidence of being introduced to a system of discipline that operated at Farrer known as the SACK system soon after arriving at high school. There was no evidence as to the meaning of the acronym but there was no challenge to the way it operated, and was permitted to operate within the school, with the approval of the school administration. The SACK system operated on the basis of a strict hierarchy requiring younger students to obey a direction or request from an older student at the risk of punishment for disobedience. In addition, the SACK system gave Year 12 students authority over the entire student body and gave Year 12 students the right to inflict punishment in the event of disobedience. There were three particular forms of punishment. These were described by the plaintiff as "the nicks" where a student was hit on the hand with a ruler, "being broomed" where a student would be required to bend over and be hit with a broom, and "gnome duty" which required a student to stand at the entrance to the Year 12 dormitory in the position of a guard holding a broom and a rubbish bin lid. 36 The plaintiff gave evidence that during the second term of his first year at Farrer he was given the affirmative side in a class debate on the question whether the SACK system should be abolished. He associated the position he took in that debate with being singled out thereafter by some Year 7 boys and by two boys in Year 8 who started calling him names. He was called "sterile", "bald", a "stezbag" (a reference to him being prepubescent), a "dickhead" and a "fuckwit". He was also called a "midget". He said that at this time he also became the subject of physical aggression. He was tripped over in the corridors, flicked on the back of the ears, pushed into other boys or shoved into walls. He said he had "spitballs" shot at him in class. (A "spitball" is chewed paper that is blown through a tube.) He said some boys in Year 10 also started calling him names. Despite the fact that he reported the aggression and the insults to his Year 7 master on multiple occasions, and that he was upset and in tears when making the complaint, the name-calling and physical intimidation continued on a daily basis or at least every other day. 37 He said the name-calling initially caused him discomfort but then it became very draining causing him to feel unhappy most of the time and that the physical abuse made him feel insecure and unsafe. He was watchful of others around him and tried to avoid places where he might be assaulted. He said he was nervous and apprehensive about going to school and that he would go straight from the bus to the reading room each morning, waiting there until roll call in order to avoid boys in the playground throwing things at him, calling him names, or pushing into him. He said he had no friends and felt completely isolated. The boys he was in primary school with had left by the second term because of the lack of attention given to academic pursuits. He considered that he was better academically than the rest of his peers. 38 He gave evidence that during second term he was physically assaulted on the bus on the way home when a student pulled a hockey stick between his legs from behind causing pain in the genital area. He said that his assailant and others around him laughed at him and that he was upset and felt humiliated. He said he reported the assault to his year master but, so far as he knew, no boys were spoken to or disciplined. He said his twin brothers were in Year 10 when he was in Year 7 and that they travelled with him on the bus to and from school, including occasions when he was assaulted, but they did nothing to intervene on his behalf. He said in cross-examination that despite the fact that he believed most people within the school were aware of the fact that he was targeted for abuse he did not speak to his brothers about what was happening to him and neither did his brothers speak to him about it. He said there was only one occasion before his brothers graduated in 1993 that they made any attempt to defend him or to interfere on his behalf. This evidence is in direct conflict with the history he gave to Dr Diamond in 2004 when he claimed the assault with the hockey stick occurred because his brothers were not on the bus that day and that they generally intervened when "they saw things". He gave a not dissimilar account to Dr Roberts. He said that he did not tell his parents about what was happening to him. He said by the end of the second term of his first year at Farrer he hated school and did not want to return after the school holidays. He said he travelled to Thredbo with his parents during term break which was a source of enjoyment for him. 39 He said at the commencement of term three he had a disagreement with one of the students in his year who threatened to inform on him to the Year 12 prefect designated as the prefect responsible for Year 7 boys. The plaintiff understood this would result in him being sent to the prefect to be "broomed". He said after the disagreement with the Year 7 boy he went home and did not return to school for approximately eight weeks because he developed stomach cramps and was hospitalised.

43 In February 1991 the plaintiff was reviewed by Dr Moore for his asthma and slow growth. Dr Moore observed that whilst there were physical indications that he was about to enter puberty (by reference to the size of his testes) he had a subnormal growth rate dating from the age of 6 years and 8 months. Dr Moore arranged for a bone age X-ray which confirmed that the plaintiff had a bone age of 10 years and a chronological age of 12 years. He arranged for the plaintiff to return for re-measuring and review in three months time. 44 On 6 May 1991 Dr Moore observed that the plaintiff continued to grow slowly but that it was expected that his growth rate would improve in the next 6 to 12 months commensurate with the onset of puberty. Again his testes were measured. Dr Moore also reported that: "David has been doing very well academically at school, coming top of his class. He says that he has not had any hassles as a result of his stature." (emphasis added) 45 I note that this appears to be in direct conflict with the plaintiff's evidence that he was called "a midget" and was teased for being prepubescent in the second term of his first year at high school. 46 On 12 August 1991, immediately prior to his hospitalisation, the plaintiff again presented to Dr Moore for review of his slow growth and asthma. Dr Moore noted that the plaintiff had been unwell in recent times as had other family members, and that he was suffering from an upper respiratory infection characterised by a prolonged non-productive cough. More recently he had come home from school unwell with "grabbing, non-pleuritic pains under his ribs" associated with his persistent cough. 47 On 26 August 1991 Dr Moore referred the plaintiff to Dr McKenzie for a surgical opinion as to a possible explanation for the pain. Dr McKenzie saw the plaintiff on 23 August and again on 26 August 1991 at which time he noted a one-week history of abdominal pain associated with being unwell with asthma for three to four weeks, that the pain was constant in nature with no radiation and no known precipitating or relieving factors. He was of the view that in the absence of any organic cause the pain would resolve spontaneously. He also noted that the plaintiff's mother was concerned about his small stature. 48 On 28 August 1991 the plaintiff was admitted to Tamworth Base Hospital by Dr Moore for investigation. He was discharged on 4 September 1991. The discharge summary noted that the plaintiff was a Year 7 student at Farrer with "some difficulty with personal interactions noted". There is nothing in the hospital notes to identify the source of this information or any elaboration as to the nature of the difficulty or whether it was in the context of home or school. 49 On 13 September 1991, eight days after his discharge from hospital, the plaintiff was reviewed by Dr Donnelly in Dr Moore's absence. He noted as follows: "…David struck me as a boy who was rather immature in his emotional development for his chronological age with a rather soft, gentle personality, who has been experiencing recurrent episodes of epigastric pain for the last 6 weeks or so.

50 Since physical examination, routine observations, endoscopy and ultrasonography excluded any organic cause, and after noting that at the time of the onset of symptoms of abdominal pain there had been conflict at home and at school, Dr Donnelly concluded that the symptoms were secondary to that unresolved conflict. There was, however, no description of the nature of the conflict in either setting or whether the plaintiff was the source of the information concerning it. Dr Donnelly also noted that the plaintiff's functioning had improved dramatically since his discharge from hospital, that he had attended school every day despite having many sick bay attendances, and that his self-esteem was improving. He noted that the plaintiff proudly showed him his handiwork. Dr Donnelly proposed a liaison with the Anglican Counselling Service and reported that he had a number of sessions with the plaintiff's parents discussing with them issues of emotional conflict, anxiety states and somatic symptoms. 51 The plaintiff gave evidence that he returned to school in the second last week of the third term. He said he did so reluctantly, fearing what would happen to him on his return, in particular that he would be sent to the prefect or "broomed" or verbally abused. In the result he was not sent to the prefect or physically assaulted although he said he was pushed around and the name-calling resumed. He said that this time he was also called a "loser" and "disloyal". He said he interpreted the allegation of disloyalty to be associated with the fact that he did not play rugby but preferred to engage in debating and public speaking contrary to the prevailing ethos of the school. 52 During the last term of Year 7 the plaintiff gave evidence that the name-calling and physical abuse continued as did his feelings of nervousness, discomfort and anxiety. He said that by this stage he was excluded from eating with other students in his year and that any attempts to join with them were rebuffed with students swearing at him, throwing things at him, and telling him to leave. He said that he complained to his term master but again nothing happened to change the behaviour of the other boys.

54 The plaintiff attended the service for eight counselling sessions between 24 September and 25 November 1991. The plaintiff gave no evidence as to his memory of, or reaction to, the counselling in which he actively participated. The counsellor's notes described the presenting problem as: "Abdominal pain, asthma - stress and fear when settling at night. Investigations by Dr Moore and McKenzie (gastroscopy) reveal no clinical signs." 55 The counselling sessions involved observed play. The counsellor's notes recorded the following: "David's "play" featured people with guns in fighting mode (or hunting mode). He always put himself and his best friend in the action, he as the conquering hero and his friend as 'different' from the army men who killed each other silently and expertly. David's view of himself is "the quiet achiever" esp at school where he aims high (with a lot of parental help and support(!)) "Shooting is a way of being angry" (esp with his twin brothers who wipe off his computer programmes). Worked with clay modelling board riders and sharks and expressed anger." 56 The plaintiff was reviewed again by Dr Moore on 14 November 1991, midway through the last term of Year 7 and during the currency of the counselling sessions, for what doctor noted as his asthma, abdominal pains, slow growth and emotional difficulties. He noted that the plaintiff's abdominal pains continued and appeared worse when he ran around although, as a rule, it was not as bad as it was previously. (It would appear that this was on the basis of information supplied by the plaintiff.) Dr Moore also noted that the plaintiff had not missed any school and that he seemed able to express his feelings in the environment offered by the Anglican Counselling Service better than he was able to in doctors' rooms or in the hospital. It would appear that this was also on the basis of information the plaintiff proffered. Importantly, there is no mention in the counselling notes or in Dr Moore's notes of the plaintiff complaining of the intense and sustained mistreatment he was subjected to on a daily basis or being rejected by his peers. The plaintiff's mother was concerned to pursue her son's slow growth and asked for a referral to a growth specialist in Sydney. 57 In summary, the plaintiff gave evidence that at the end of Year 7 he regarded the entire first year at Farrer as a bad experience because of how he was treated on a daily basis and because of his isolation. I accept that the plaintiff was treated by his peers generally in the way that he described. I am not persuaded, however, that the bullying and name-calling was as persistent as he claimed since his evidence is not easily reconciled with his presentation to Dr Donnelly, his own account to Dr Moore that he was not "hassled" because of his height ,or the observations of the counsellors that the primary source of his anger was directed at his twin brothers. I also accept that he was relatively isolated which caused him unhappiness and upset but again I am not persuaded that this was solely the result of his experiences at school, as distinct from it being a reflection of his place within the family and the longstanding difficulties in his relationship with his mother, although doubtless his experiences at school contributed to his isolation. 58 It is significant in terms of his behaviour in later years that he was observed by nursing staff and his mother to wash his hands with some undue regularity and compulsion during the course of his hospitalisation in 1991. Although I am persuaded that his somatic condition can be sourced in part to conflict at school, and that this condition is an early indication of an anxiety state which may in turn have been a precursor to his adolescent and then adult psychological profile, I am not satisfied on the probabilities that his symptomatic obsessive washing at this time which was both isolated and transient, is susceptible to the same aetiological link. I am constrained to disregard the plaintiff's claim in cross-examination that he regarded the school books with him in hospital as unclean thus causing him to wash as unreliable given its emergence for the first time in cross-examination.

64 The plaintiff was next reviewed by Dr Moore on 1 September 1992 for a number of listed problems namely asthma, short stature, slow growth and sore heels. Dr Moore noted that the asthma had been relatively well controlled, and although his facial puffiness had resolved the plaintiff and his mother considered there to be some "truncal obesity" as a result of his steroid therapy. An examination of his genitals was undertaken with measurement of his testes and his penile length. In what Dr Moore described as a private conversation, the plaintiff was said to be in favour of a course of injectable testosterone to promote his growth despite being advised to expect some adverse side effects and that he could expect his own testosterone to takeover in the next 12 months. Dr Moore provided a prescription and advised that he would repeat a bone age X-ray early the following year after the plaintiff had completed the prescribed course of injections. A later report confirmed that four injections were administered. The plaintiff's complaint of sore heels, which was noted to be of recent onset, was treated with rest with a view to allowing the injury to settle down before he resumed playing hockey. 65 His academic results were consistently high throughout the year with his year master reporting that "David is a fine student who deserves these results". It was also noted that he was polite and hard working but in some subjects his results would improve with greater classroom participation. Whether this reflected his social isolation or his quiet temperament and demeanour is not clear. 66 Despite his level of functioning, I accept that his pain and humiliation at being treated as if he were suffering from AIDS was real. I am also persuaded that it was in this context that he commenced to wash with disinfectant but at this stage only on an occasional basis as detailed in the letter to the counsellor written the following year. 67 At the end of his second year at high school he had an enjoyable family holiday but again he said he resisted returning to Farrer the following year for fear that the mistreatment would continue. It would appear that he did not make his parents aware of the reason for his resistance although he did ask to be moved to another school. Year 9 - 1993 68 The plaintiff gave evidence that the name-calling continued unabated throughout the first term of Year 9. He said that in physical education classes he was targeted when playing team sports with students crash tackling him to try and injure him and then laughing it off as if it were part of the game. He said that he complained to the physical education teacher who offered the solution that he should not play team sports but use the time to run around the oval. He said that running around the playing fields on his own made him feel as if everyone was looking at him and he felt even more isolated, unhappy and worthless. I note that in his half yearly report for the subject entitled "Personal Development, Health and Physical Education" the plaintiff was graded with "B" for conduct and achievement and "A" for effort. This teacher commented: "Very hard working and likes perfection. Keep it up". The end of year report in the same subject recorded "B" for achievement and effort and "A" for conduct with the class teacher noting: "An attentive and industrious student". 69 There is no obvious alignment between the plaintiff's evidence of his experience in physical education classes and the assessment of his achievement by the classroom teacher. For this reason while I accept that he did not feel included by his peers in team sports, and that his height may not have qualified him for inclusion in some, I do not accept that he was consistently singled out in the way he described.

70 Dr Moore reviewed the plaintiff again midway through the first term of Year 9 where it was noted after an examination of his genitals that he was "in charge of his own pubertal development" such that there was no need for further regular paediatric supervision. A recent bone age X-ray revealed a bone age of 12 years 6 months and a chronological age of 14 years and 5 months, giving the plaintiff an estimated mature height of 176.7 centimetres with rapid growth noted over the previous six months. The plaintiff's continuing complaint of heel pain had improved with X-rays showing no abnormality. The difficulty the plaintiff complained of when swallowing was thought to be likely related to pubertal changes with his voice. He was not reviewed again until March 1994. 71 The plaintiff gave evidence that in Year 9 students started throwing rocks and gravel at him in the assembly line while he was waiting for inspection on a weekly basis and that despite the fact that teachers were present they did nothing to stop it. I am not persuaded, on the probabilities, that this occurred on a continual basis with tacit teacher approval although I accept it may well have occurred at assembly without their knowledge from time to time. The plaintiff also said that despite the fact that the effects of the cortisone had subsided, the taunts and teasing about him having AIDS continued and he continued to spend recess and lunchtime alone. When he complained to house masters and year masters they would listen to his complaints, but they did not suggest any strategy either to deflect the mistreatment or for him to deal with it in some way and, so far as he was aware, they did nothing to intervene to prevent it. 72 He said in evidence that half way through Year 9 he started to cut his arms and his legs with a razor. He said he did not know why. He said he continued to feel dirty after contact with other students and washed excessively and routinely after school using disinfectant in the process. He said over the previous 12 months, that is since midway through 1992 in Year 8, he had been using household grade disinfectant but by term three in Year 9 he was using hospital grade disinfectant. There is no evidence that washing with hospital grade disinfectant came to the attention of his mother until midway through 1994. It is not easy to understand how that could be so if the plaintiff's evidence of it being an established compulsion over the preceding eighteen months is to be accepted. I note his mother did not give evidence. Moreover, in his letter to the counsellor he did not acknowledge using hospital grade detergent until 1994. I regard his contemporaneous account as the more reliable. I accept however that the compulsion to wash was an established ritual by Year 9 but not such as to interfere with his daily functioning. 73 He said that by the end of 1993 he did not want to be around the school and did not want to go to school. He had no friends either in the year above him or in his own year. He said he had two or three boys in Year 7 who he spent time with both because they shared similar interests with him and because they were also receiving some of the mistreatment he had received as a younger boy. He said he felt isolated and powerless to change his circumstances but by this stage he regarded it as pointless to complain to the school authorities since his sustained complaints over previous years had not brought about any change. 74 His school reports at mid year and end of year for Year 9 continue to reflect a high standard of academic achievement, save for mathematics where it is noted that his results suffer from working too slowly in exam situations and a need to do more self-motivated revision and study. His behaviour does not attract adverse comment. He is described by most teachers as quiet, conscientious, polite and hard working with his English teacher noting that he must be willing to listen to others if he is to succeed. Year 10 - 1994 75 So far as his school work was concerned throughout Years 7, 8 and 9 the plaintiff gave evidence that he was able to "coast along and get reasonable marks" despite the fact that his focus was distracted by the behaviour of other students. This is not reflected in his school reports. Indeed, in large measure, they contradict his self-assessment. He said that during Year 10 his school marks plummeted, particularly in science and he was failing in maths. He said that it was in science and maths classes that students would interrupt him by either copying his work or throwing things at him. He said that this was also happening in other classes. This is also not borne out by his school reports. 76 In so far as his marks in science are concerned, and while it is true his first semester's results across the fields of achievement, effort and conduct were graded as "C", the class teacher observed: "His problem-solving mark will improve with practice. All set work must be submitted". This would seem to suggest a lack of application both in class and out of class. In the second semester his results improved to "A's" and a "B" with the class teacher noting: "David has dramatically improved his efforts and has achieved an excellent result". 77 In mathematics his first semester results were again "A's" and a "B" with consistent grades in second semester. His class teacher observed: "David has worked consistently during this year and should be successful in Year 11". 78 He was last reviewed by Dr Moore on 10 March 1994. Dr Moore noted that the plaintiff had been stable over the previous 12 months with no complaints of heel pain, difficulty swallowing or abdominal pain and no alteration to the regular asthma medications. A genital examination was undertaken, together with height and weight measurements, all of which proved unremarkable in the context of his growth and development over the previous three years. His general health was described as good and Dr Moore noted that the plaintiff had recently won a Japanese prize. After speaking with the plaintiff alone Dr Moore observed that he presented as a "much more mature young man than on previous occasions" and that he was angling for an overseas exchange to Austria the following year. Dr Moore also reported the following: "…He continues to have problems at Farrer, I gather he is hassled by other students because of his academic success and small size".

79 He said in evidence he was still feeling dirty and routinely washing with disinfectant and self-mutilating. Clearly enough, although he reported some difficulties at school to Dr Moore, he did not detail the extent of the conflict and made no reference to the other acute avoidant behaviours he described in his evidence. 80 The plaintiff said that in the second term of Year 10 he sat for a scholarship for the Kings School in Sydney because he wanted to change schools. He said the references to sterility, baldness and his prepubescent condition had dropped off the catalogue of insults by this time but new insults were added. It was in Year 10 that he was required to write an essay about Adolf Hitler where he received a mark of 20 out of 20. He said that mark was publicly announced in the class and immediately thereafter students started calling him "Hitler" and a "Nazi" and greeting him with the Nazi salute. It was also said of him that he was "a Jew hater" and a "neo-Nazi". He said he was also being called a "paedophile" on a daily basis at this stage. He said he complained to the teaching staff about being vilified in this way but no member of the staff spoke to the boys who were responsible because the name-calling continued. 81 Midway through the 1994 school year a document entitled "The Fair Discipline Code", in which bullying was described as unacceptable behaviour, was distributed to the students at assembly. The plaintiff said he dismissed the document as just words on paper since his personal experience was that the staff had done nothing over an extended period of years to address the fact that he was being systematically bullied despite his repeated complaints. It is ironical that the school should endorse a publication acknowledging the inappropriateness of bullying in 1994 (no doubt aware of the attendant and foreseeable risk to a student's physical and mental health that such conduct entails) and for the defendant in this case to accept liability for that very risk. 82 In the second week of term three another incident occurred consequent upon the plaintiff being called a "poof" and a "faggot". He retaliated by swearing at two of the Year 12 boys. He was then sent to the common room at recess to see the senior prefect. He refused to do this and ran away. He said he kept running around the oval to try and get away but was chased down by eight or nine Year 12 boys and dragged back to the Year 12 common room. He said he was surrounded by about twenty Year 12 boys who yelled at him and swore at him calling him a "poof" and a "faggot", a "smartarse" and a "liar". He said he felt totally vulnerable and powerless. He felt as if they were going to hit him and if this was going to happen he did not know when it was going to end. He said he reported the incident and that a meeting was convened in the principal's office. He gave his account of what had occurred as did the other boys. He says that all he remembers from that meeting is that he was informed that in the view of the staff there was fault on both sides and that he should not be disrespectful to the Year 12 students. He said that he complained to his father and that his father made a complaint to the school but that the mistreatment at the hands of the senior boys continued. They continued to push into him, hit him, flick his ears and call him a "faggot" and "sterile". He said that they mocked him with a squealing high voice. 83 At the end of the third term in Year 10 he went on a trip to Tasmania with his parents but did not want to leave the hotel throughout the trip because he felt unhappy and isolated and he was fearful of being hurt. 84 Towards the end of the year a Year 8 boy pushed his school bag on top of the plaintiff on the school bus. The plaintiff retaliated and a physical fight broke out. This prompted him to write a letter which he gave to a member of staff on the understanding that it would be given to the principal. This in turn precipitated the involvement of the school counsellor, Mr Adams. The letter became the subject of detailed cross-examination. It was also considered by the experts for what it revealed about the plaintiff's emotional and psychiatric health at this time for diagnostic purposes. The letter to the counsellor 85 In order to put the cross-examination in context it is necessary to set the letter out in full. It reads as follows: "It all started in Year 7 when I started at Farrer. I was one of the most popular boys in the year, I got along with almost everyone. But then I got sick with really bad stomach pains which no doctor could explain. I was off school for nearly a whole term and when I got back to school I was took (sic) sick still to do PE and all the sort of things that I did before. I then became a victim of the "Sac System" I was always being pushed around by older years. So I spoke out against the "Sac System" and nobody supported me. All my friends left me and I spent the rest of the year in fear of what they might do to me. I tried to convince my parents to let me leave, but I refused to go to any co-ed school so I was not allowed to leave.

86 In cross-examination the plaintiff said that he prepared the letter because he hoped that by writing it a teacher would be motivated to ask him to explain the reason for his distress and that this would give him the opportunity to detail the extent to which he was being bullied and abused so that it would stop. He insisted that the letter was intended only to highlight the fact of his mistreatment at school and the extent of it and nothing more. In cross-examination the plaintiff conceded that in the various meetings with Mr Adams that followed his receipt of the letter that he did not nominate any particular instances of mistreatment other than a reference to "some abuse and occasional stone throwing" which Mr Adams recorded in his notes. 87 He said that when he wrote the letter he had not planned to give it to anyone in particular. He confirmed that he prepared it on a computer but could not recall whether he prepared it in one sitting or over a period of time. He refused to accept the proposition that he was careful to express precisely and accurately the various matters he wanted to draw to the reader's attention, or that he was concerned to record with precision the chronology in which various events occurred. He said his primary concern was to set out how the abuse and the emotional conflict that it gave rise to had affected him. He was unable to explain why he described in the first paragraph of the letter becoming a victim of the SACK system only after he was hospitalised with stomach pains and that it was only after being in hospital that the mistreatment started (as to which see the italicised references in the letter extracted above). Under cross-examination he said that when he was in hospital he had feelings of being unclean but that this was associated with his school books which were with him in the hospital. I have already indicated that I do not accept that evidence. 88 The plaintiff said the bold typed references to "it" and "needing help" in the last paragraph of the letter were referable to the abuse and the bullying, while the underlined references were referable to his obsessive washing and his reasons for behaving in this way. He said the references to "the wonderful doctors" and "lovely medicine" was intended as sarcasm. Although he was taken to the content of the letter in detail in cross-examination he repeatedly insisted that the letter was a request for help because he was being bullied and not intended to be interpreted in any other way. Contrary to his expectations that his complaint would put an end to his mistreatment, he felt that the reason for his distress was ignored by the counsellor and others and that it was deflected into diagnosing him with an illness he did not identify with. 89 The defendant submitted that I should read the letter to the counsellor as reliably and accurately appointing the time when the mistreatment commenced and to conclude that the plaintiff's hospitalisation in 1991 was unrelated to his experience in the school environment. While a strict reading of the letter supports that conclusion, given the contemporaneous records of his treating doctors, I am satisfied that conflict at school materially contributed to his presentation with a somatic condition for which he was hospitalised.

93 The plaintiff gave evidence that after meeting with Mr Adams he was advised to attend a specialist in Sydney and should take Prozac. The fact that the plaintiff was informed that there was treatment for his condition, including drug therapy and cognitive behavioural therapy, is reflected in Mr Adams' notes. Mr Adams' notes also record that the plaintiff was told that his parents needed to be informed so that that they could assist in providing the necessary treatment and, that in the meantime, Mr Adams would obtain some literature on the disorder with a view to enabling his parents to appreciate the need for the plaintiff to consult with an appropriate specialist. The notes also record Mr Adams' intention to administer a depression scale test to assist in alerting the plaintiff's parents to what he described as "their son's present distress" and the need to have a follow-up interview with the plaintiff and to consult further with the plaintiff's year master, Mr McCormack. 94 On the 25 November 1994 (three days after first speaking with the plaintiff), Mr Adams had a further interview with him. On this occasion he administered the depression scale, a test developed by the Centre for Epidemiological Studies in the United States in the form of a self-report questionnaire where the subject is invited to circle the answer that best described their feelings over the previous week. The plaintiff scored in the severely depressed range. He was informed that the test was for two reasons, first to assess the extent of his depression and secondly to utilise the information revealed by the test as a way of bringing to the attention of his parents the psychological difficulties he was facing. Apparently the plaintiff agreed with the test being utilised for the first stated purpose but hesitated at its use for the second stated purpose. (He gave no reason for his hesitation). The plaintiff was advised to speak to Mr McCormack and was told that he (the plaintiff) had control over what was to happen next. 95 At this meeting Mr Adams also discussed with the plaintiff the fight he had on the bus with the Year 8 boy. In this context Mr. Adams records that the plaintiff admitted he was the "victim of verbal abuse and occasional stone throwing where he was sometimes hit by a stone". Given the comprehensive nature of Mr Adams' notes, I am compelled to assume that the plaintiff did not dilate further upon either the extent of the verbal abuse and its persistence over the preceding three years or the regular physical abuse he described in his evidence. He was not invited to explain why he did not take the opportunity to detail the nature and extent of his mistreatment in his dealings with Mr Adams at this time. The fact that he did not is all the more difficult to understand given his stated determination that in writing and delivering the letter he wanted his help so that the bullying would stop. 96 On 6 December 1994 Mr Adams interviewed the plaintiff where the following was noted: "(1) Case history of OCD victim read by DG. (2) Article "OCD - the Hidden Disorder" - read next by DG. (3) The issue of enlisting the parents' cooperation via the article (of pnt 2) discussed. (4) (the score on the depression scale noted) (5) DG agreed to his parents being informed of his condition on the following terms: (a) that it be after this coming weekend (b) that Princ. and SC be involved (c ) that both his parents be involved (d) that he himself NOT be present". 97 The plaintiff's terms and conditions were communicated to the principal with a view to convening a meeting with his parents. On 13 December 1994 the plaintiff's parents were informed of the probable diagnosis of obsessive-compulsive disorder. They were also provided with information with a view to them enlisting assistance from the plaintiff's general practitioner.

100 In his evidence the plaintiff also claimed that Mr Adams did not offer him any counselling but gave him a pamphlet on obsessive-compulsive disorder. He said that was the only assistance he received. He said that he understood that he was supposed to read the pamphlet. He said he had a follow-up meeting with Mr Adams after which he attended a doctor's appointment which had been convened for him. He said he went to the doctor with his teacher. As will become clear, this was not until November 1995, the plaintiff having refused to attend the doctor with his mother, when his parents were first notified by the school of the problem. He said the doctor simply asked him about the washing behaviour but did not provide him with any counselling or treatment. He said that no counselling was provided to him after the doctor's appointment and that no one provided him with any solutions or strategies for dealing with what he was experiencing at school at this time or at any other time. 101 The plaintiff also said in evidence that he rejected the suggestion from Mr Adams and others that his behaviour indicated that he was suffering from an obsessive-compulsive disorder, a position he maintained under cross-examination when he was asked about a note in the patient file maintained by Dr Campbell in 2001 after the plaintiff attended on him for the purposes of obtaining medical clearance for entry to the Army. Dr Campbell noted that the plaintiff suffered "mild obsessive-compulsive symptoms for 2-3 years in late high school". Consistent with the plaintiff's view that his washing behaviour was not symptomatic of any psychiatric disorder he did not disclose that he suffered from a condition of any psychiatric or psychological nature in his admission form. He did disclose that he suffered from childhood asthma. 102 Having regard to Mr Adams' notes and his concern that the plaintiff's parents be involved as occurred on the terms dictated by the plaintiff himself, and that the school actively participated in the plaintiff's medical advice and intervention, I am not persuaded that the plaintiff's evidence is a fair reflection of the way the school authorities responded to and dealt with his predicament as it presented to them in November 1994. In circumstances where the plaintiff was categorical in his refusing to see a doctor, or accept a referral to St Vincent's Clinic in Sydney, it would appear that no further action was taken by the school or his parents before July 1995 when he was in Year 11. I am however persuaded that his experiences both at home and school and the isolation and helplessness he felt in both environments was the source of his psychiatric illness in 1994 as reflected in the joint views of the experts which I will set out in detail later in the judgment. The plaintiff's academic progress at this time was seemingly unaffected with him scoring "A's" in all subjects except Mathematics where he scored a "C" average but with "A's" for effort and conduct. His year master commented as follows: "David is a very diligent young man. He is confident and eager to pursue his own ideas. Academically David shines."

Year 11- 1995 103 The plaintiff said in Year 11 he was still called names and taunted on a daily basis. He was no longer called a paedophile but he was called a "poof" and a "faggot" and a "weirdo" and a "queer" and an "arse-bandit" and a "Nazi". He said that he was pushed and shoved and tripped almost every day and that despite the fact that seniority entitled him to a seat further back in the school bus, he still sat behind the driver to avoid being mistreated at the back of the bus. He said he felt as if he was on the lowest rung of the school hierarchy. 104 He said he tried to improve his situation at school by taking on a number of extracurricular activities such as performing in the school band, involving himself in mock trials and participating in debating, public speaking and drama. He also sought election to the student representative council and was appointed editor of the school magazine. In June 1995 he participated in work experience with Mr Howard, the then Leader of the Opposition, in Canberra where he met various members of the caucus with whom he was able to freely engage. 105 He said that his academic achievements in 1995 in Year 11 deteriorated and he was failing a number of subjects. In particular, he said he failed two-unit mathematics and that he was dropped from this subject to "maths in society", a very basic mathematics class, and that he had received 17 per cent in the history exam. His results in May 1995 seem to reflect a slide in his academic achievements. In some subjects the commentary of teachers emphasised the need for study and revision at home and to ensure that his studies did not suffer as a result of his other activities. He acknowledged when he spoke with Dr Roberts that he missed classes and some whole days at school because of all his extracurricular activities and that he did not complete homework tasks. At the end of Year 11 his marks generally reflected the same pattern as at mid year with both his year master and the principal commenting that he needed to spend more time on class work and revision and not be distracted by outside influences. Notably, by midway through 1996 his marks had generally improved, including in mathematics, although it is accepted that as the year progressed his grades slipped and, in the result, his HSC performance was poor. 106 He said that on one occasion during the course of the school assembly in term three of Year 11, where the student body was arranged on a semi-circular asphalt drive two or three boys deep, about eight students either side of him stepped away from him and left him standing on his own. He said that the staff did nothing and he was basically left standing on his own in front of the entire school. He said he felt completely humiliated. 107 He said the excessive washing with hospital grade disinfectant continued in 1995 and that he was now self-mutilating every couple of days. He said that the washing caused his skin to burn and that he wore extra layers of clothes so that the blood from the cuts and the burns did not seep through his shirt. He said this made him look different from the other boys. He said he did not wear the summer uniform consisting of short pants for fear that his self-inflicted injuries would be obvious so he wore long pants throughout the summer season. He said he felt powerless to change his behaviour. I accept his evidence. 108 In July 1995 his mother provided a further written summary of her observations of the plaintiff's recent behaviour to Dr Holford in the context of her seeking further advice about the plaintiff's behaviour. Again Dr Holford notes that the plaintiff refused to attend with his mother. On this occasion the plaintiff's mother reported seeing scratches on the plaintiff's legs and marks on his arms in the form of a swastika when his bedclothes accidentally exposed him. The plaintiff said he cut these marks into his arms and legs with a blade. The plaintiff's mother also reported as follows: "(He) won't put his hand on doors, refuses to go into McDonald's if we use it for conveniences and quick food to/from Sydney, screams at me for changing bed linen or washing his towel…eats only what he wants - condemns what I serve". 109 She confirmed that the plaintiff performed well in extracurricular activities, but that he had not done well in his school work. She said: "…He uses me as his excuse...he refuses to do what he doesn't want to do…To others, he probably seems to be the quiet, polite capable boy! Till last July, he really was co-operative most of the time!" 110 In November 1995 Dr Pearson, another doctor at the Barton Lane Medical Practice, wrote a referral letter to Dr Tan, a psychiatrist, in which he noted as follows: "…(The plaintiff) describes a long history of conflict with his mother and increasing problems with an obsession to wash his hands. Although a very bright student at school, he finds that his life has been increasingly dominated by an inability to study because of his compulsion. He is using disinfectants, alcohol and anything else that he can find to destroy germs in association with his obsession.

111 I have already noted that the plaintiff gave evidence that he attended a doctor in Tamworth with a teacher from Farrer but that he was apparently mistaken as to the year that this occurred. Irrespective of when it occurred it was the plaintiff's evidence that the doctor did not ask him about his experiences at school and that the teacher spoke on his behalf. I am satisfied that this is not borne out by the doctor's notes. It is also clear from the referral letter that the plaintiff described conflict with his mother and referred to his obsessional washing without that behaviour being solely or even dominantly in reaction to contamination in the school environment. In fact, the doctor does not refer to him suffering any mistreatment at school at all, much less the sustained physical and emotional abuse the plaintiff detailed in his evidence. Although the plaintiff gave evidence that the doctor did not give him any counselling or provide him with any form of treatment he acknowledged in cross-examination that he chose not to accept the referral to the psychiatrist, it would seem because of his resistance to accepting the need for psychiatric intervention. 112 For the balance of Year 11 the plaintiff said he continued to eat alone at recess and lunchtime and continued to go directly to the reading room on arrival at school. He said he felt that no one in the school respected him and that the boys in Years 11 and 12 would enlist the younger boys to taunt him by saying he was gay and that they should not come near him. He said he was teased and taunted because of his presumed homosexuality. He said he complained about that conduct but it did not stop. 113 He said towards the end of Year 11 he was required to attend a leadership camp at Foster. He said he was unable to find a dormitory in which to sleep because every time he walked into one he was told by the students there were no beds available despite the fact that it was obvious there were empty beds. He said he felt unwanted, embarrassed and humiliated. He said he brought this to the attention of the responsible staff member who required him to sleep on a mattress on the floor even though there were beds to sleep on in that room. He was given no explanation as to why he had to sleep on the mattress on the floor. 114 At the end of the year there was a school excursion to Queensland. He did not want to go but his parents had paid for the trip and encouraged him to so he went. He said he was picked on throughout the trip. He said he was given the dirtiest tasks to complete and that two boys threatened to take him and leave him in a gay bar in Townsville. Again he said he felt anxious and threatened and, despite the fact that he informed staff about being mistreated, nothing was done to assist him. He said he was so fearful of being physically abused he did not go swimming with the other boys but spent his time at the camp in his tent. He said he got an award which was described as "the paddling award" because he did not go swimming with the other boys. He said that the award was presented in front of all the boys who had gone on the excursion and that he felt upset and humiliated. He said by the end of the year his self-esteem was at a very low ebb. 115 He went on an exchange excursion to Germany at the end of Year 11 which was an experience he thoroughly enjoyed. He said he was treated well by the family he was billeted with and he got on well with people of his own age. On his return to Farrer, however, the mistreatment continued and he resumed self-mutilation and washing excessively. Year 12 - 1996 116 He said he was made a prefect in 1996 but that despite the fact that this entitled him to sit at the back of the bus he was tripped on his way there and would be taunted once he arrived at the back. He heard other prefects talking to the younger students and informing them that they did not need to view him as a prefect and that no one had to do what he required of them. He said the younger boys laughed at him. Under cross-examination he confirmed that his position as a prefect was in part by appointment, in the sense that the headmaster had the final say on who was appointed to the position, but that the students were also permitted to vote for the appointment of prefects and, so far as he was aware, he was voted by his peers to the position, an appointment which was approved by the school authorities. He said that despite the fact that there was a part of the school premises which was designated for exclusive use by Year 12 boys (described as the Year 12 lawn), he was excluded from that area. He said that when he stepped onto the lawn he was told "get off our lawn you faggot - you are not allowed on there". He said to his knowledge that was done in the presence of the teaching staff who did nothing to intervene. He said there was a Year 12 common room he was also excluded from and that he was threatened with physical violence if he stayed in the common room despite his status as a prefect. He was forced to use a study room opposite the language room next to the staff room. He felt safer there than being out in the playground. 117 The school magazine records that at Speech Day in 1996 the plaintiff received a first in 2-unit German and that he won the Subject Master's prize for senior public speaking. He was also recorded as a Silver level student in Year 12 which placed him above a number of Bronze level students while not being included within the six Gold level students in that year. He was named one of three senior members of the Farrer debating squad and is photographed with the squad where he appears relaxed and smiling as he does in the Year 12 photograph. He also submitted a piece entitled "Inter School Christian Fellowship" which was published in the school magazine together with another full page piece entitled "Youth Futures Forum" in which he reported on his attendance at a national youth forum which was held at Macquarie University that year. He was apparently one of 100 students Australia-wide to the accepted as an attendee and had been nominated by the principal to be the Farrer representative. He agreed in cross-examination that he regarded it as a great achievement to have attended the forum as the only representative of his school when he had the opportunity to meet the then Prime Minister, Mr Howard. On the other hand he claimed that the other students laughed at him for his participation. 118 He said at the Year 12 formal the principal read a prepared piece where each of the Year 12 students was referred to in rhyming prose. The document was tendered in evidence. The reference to the plaintiff read as follows: "Our political animal from Moore Creek is right wing in the extreme, Dave's views on many subjects the peer group find off the beam". 119 He said when this was read out at the school formal he felt denigrated and humiliated. He said that he felt that the principal was confirming that he was a Nazi and that nobody liked him.

120 Mr McIlwaine submitted that the humiliation and denigration that he felt at the school formal is a component of his non-economic loss and, despite the fact that it was delivered in the spirit of a "roasting" of all the Year 12 students, it was reckless and insensitive for the principal to have mocked the plaintiff's political views in circumstances where he had been vilified as a Nazi by his peers over many years. I am not satisfied that this incident supports the construction for which Mr McIlwaine contends. There is no evidence at all that the principal knew of the Nazi name-calling as distinct from it being likely that he was aware of the plaintiff's strongly held political views, since I note that in his Year 12 profile the plaintiff accepted that he nominated amongst his dislikes "communists and socialists" and recorded his biggest regret as "Not pulling a face at Paul Keating when he gave me a cold stare in Parliament during my work experience". I also note that his parting gesture on Year 12 "muck up day" was to hack into the school's computer system and introduce what he agreed was "Nazi graffiti" including an image of a "skinhead" with a swastika as one of the folder icons. He said he obtained the image of the skinhead from a computer game which involved "going around and shooting Nazis" which was a game he enjoyed playing. He accepted that the prank was delivered with intended vitriol and in retaliation at being called a Nazi. He acknowledged that his computer studies teacher was very upset with him to the extent of ignoring him completely at the school formal and awards day. He said he did not recall any of the students passing any remark at his prank save for the references in the school magazine to which I will later refer. 121 In cross-examination he denied having exaggerated any of the events he described in his evidence in chief. He denied exaggerating to the reporting doctors the symptoms from which he suffered from time to time and confirmed that he had been completely truthful in relation to his recounting of his experiences. 122 After giving due weight to the risk that retrospectivity in a case such as this may give rise to unintended exaggeration and some confabulation, and despite my being satisfied that the plaintiff has misstated the extent to which he was offered assistance in 1994 and 1995, I accept that he has given a truthful account of his experiences at Farrer and that the emotional pain and distress he felt in different ways and with differing intensity as he passed from childhood through to late adolescence was considerable as was his shame at the extent of his self-inflicted harm. The post-Farrer years - tertiary studies, employment and mental health 123 The plaintiff did not give any evidence as to how he spent the summer months after leaving Farrer in 1996 at the conclusion of Year 12. 124 In February 1997 he enrolled at the University of New England in a Bachelor of Arts degree course. He supported his application for enrolment with a reference from Mr Downs, the principal of Farrer. Mr Downs spoke of the plaintiff in glowing terms. He described his immense talent ranging from his academic achievements through to the sporting arena. He also said: "…His public speaking and debating skills were legendary and he was the recipient of many awards at Speech Day for his talents." He went on to say: "On a personal plane, David was and is a young man of immense potential...his honesty, reliability and integrity are without blemish; he enjoyed the respect of staff; and his co-operative nature and desire to please were highly commended…David Gregory was an asset to this school..."

126 The University of New England campus is at Armidale. The plaintiff gave evidence that he boarded with a professor for an initial period of three months and thereafter with two friends for a few months before he moved away from campus and returned to live with his parents at Tamworth where he continued his studies on an external basis. He said that he had encountered a number of former Farrer students on campus and felt frightened by that exposure - he apparently had no fear of encountering ex-students in Tamworth despite the proximity of the school to his family home. In the course of his extended studies he worked selling electrical goods in a retail outlet in Tamworth and, at the end of 1997, sought preselection for the seat of New England. He said that despite the fact that he was not successful in gaining preselection he felt confident in seeking endorsement and that he continued to assist the sitting member with work in the electoral office after the election. He said that at this time his use of disinfectant became "a lot milder" with the use of hospital grade disinfectants subsiding to almost nothing and ultimately that it was sufficient for him to wash with soap and water. For my own part it is difficult to come to any conclusion other than that in the course of twelve months, the plaintiff had so recovered the damage to his self-image and self-esteem from his experience at Farrer, that he regarded himself as capable and competent to represent his local electorate at the level of Federal politics and had the support of his local party members for him to pursue those ambitions. 127 The plaintiff holidayed with his family on the south coast over the 1997 Christmas period and in 1998 commenced the second year of his Bachelor of Arts degree, again studying externally and living with his parents. Throughout 1998 he said he was feeling happy and active and that he was "on track" in terms of his future prospects. He travelled to New Zealand with his parents in the middle of 1998 and achieved a distinction and credit ranking for his tertiary studies at the conclusion of the academic year, after which he travelled with his parents to the south coast for the 1998 Christmas period which he described as "a good holiday".

133 The Glengarry campus is in a rural location adjoining the Morton National Park in the Southern Highlands. It covers an area of about 900 acres and is 10 kilometres from the Kangaroo Valley township. There are up to 80 students on campus in any six-month period with 15 staff members comprising the full complement of the teaching staff. The plaintiff's responsibilities were as a dorm-master for 20 students and a classroom teacher in computer studies and history. He was also involved in the outdoor program which involved taking students on hikes, bushwalking, orienteering, and other outdoor activities such as canoeing, mountain bike riding, and cross-country running. His working day commenced at 6.30am with inspection at 7.30am and breakfast at 8am. Classes commenced at 8.45am and concluded at 3pm with fitness activities occupying the balance of the afternoon. The evening meal was at 6pm and lights out at 10pm. 134 In August 2001 the plaintiff withdrew from his university studies having found that he was not able to focus sufficiently on the course work and discharge his teaching responsibilities at the Glengarry campus. (I interpolate that he had the intention of re-enrolling in the first semester in 2002 but, in the result, did not resume his tertiary studies until 2005 after he was dismissed from The Scots College. In December 2005 he obtained a Masters in Defence. He also completed a Business Diploma before obtaining his Masters of Business Administration in 2008.) He described his experiences in the six months to December 2001 as a good experience. In January 2002 he was offered a full-time position which he formally accepted in March 2002. Reading the Myall magazine 135 The plaintiff joined his family in Tamworth for the Christmas break at the end of 2001 at which time he said he saw the Farrer Myall magazine for the year ended 1996 for the first time. It is this incident that I have earlier referred to as "the Myall incident". It is the first of the so-called trigger events which Dr Diamond was satisfied precipitated a recurrence of the psychiatric condition the plaintiff suffered as an adolescent. 136 At the conclusion of each academic year a magazine is produced by the school recording significant events across the annual sporting and academic programs together with affording recognition to those students who have achieved distinction in both curricular and extracurricular activities. The magazine is entitled "The Myall". The magazine also includes a group photograph of the students in each year and, in addition to the group photograph for Year 12, each Year 12 student is individually photographed with provision for the student to submit personal information concerning specified matters including their nicknames, their interests, their likes and dislikes, their most important possession, their biggest regret, their most embarrassing moment, the person they would most like to meet and any parting comment as graduating students. 137 The plaintiff gave evidence that the individual profiles were vetted by the principal prior to publication. He said he acquired this information when he was editor of the Myall as a Year 11 student in 1995. He said that despite being proud of the magazine produced under his editorship in 1995, and despite his contributions in the form of three published articles in the 1996 edition of the magazine, he made no effort to read or review it after leaving school and that he did not see the 1996 edition until Christmas 2001 when he retrieved a copy of it from where his mother had kept it to show to a friend. He said that because his friend wanted to see his Year 12 profile he turned directly to that section of the magazine. He said that he read each of the profiles of the Year 12 boys and noted that some of the profiles of his peers made reference to him either directly, or by inference, in derogatory terms. Of the 71 profiles, 7 profiles were identified by him in evidence as being the source of feelings of anger, embarrassment and humiliation. They were as follows: a) Two students identified "neo-fascists" or "neo-Nazis" as among their dislikes, which he took to be a reference to himself because he had been called a Nazi fascist on countless occasions during his schooling after having been awarded an "A" grading for an essay he had written on Adolf Hitler in Year 10. I note that he did not consider that corrupting the school computers by introduction of Nazi references as his personal muck up day prank might provide a further explanation for these remarks.

A student suffers a panic attack in June 2002 143 The plaintiff gave evidence that at the end of second term in 2002 the school ran a challenge event called the 24-hour road race where students were required to undertake orienteering over a 24-hour period. He received a radio message during the evening that one of the boys was having a panic attack in the bush. The plaintiff responded by having the boy brought to him. He spent half an hour with the boy, listening to him and calming him down after which the boy was able to rejoin his group and finish the event. The plaintiff gave evidence that it then struck him that it would have been just as easy for a teacher to have listened to him and to have helped him to deal with the emotional pain that he was suffering as a result of being bullied as a student. He said that he reacted to this realisation by being repelled by his own Year 9 school books which he had taken to the Glengarry campus as a teaching resource when he accepted the position in 2001. He said that when he saw the books in his room they brought back memories of what happened to him at Farrer and that they made him feel dirty and he had to get rid of them. He said that after burning the books he had to wash his allocated accommodation with hospital grade disinfectant in case the books had touched something else in his room. He said that despite sanitising his room in this way he was still unable to sleep in it and that even entering the room caused him to immediately feel dirty. He said he took his mattress and converted a storeroom attached to the computer room into a bedroom. He said he dressed in the storeroom and showered late in the evening in facilities that were attached to the boys' toilets. When he was discovered by a staff member he was directed to move back into his allocated accommodation. He said he was unable to do as he was requested so he moved his mattress into a tent in bushland about 300 metres from the school buildings where he slept during the winter months of 2002 without coming to notice. Thereafter other accommodation became available on campus which addressed the plaintiff's concerns for a short time but he went back to living in the tent for a period the following year. It was only then that others became aware that he was sleeping in a tent. He said that when he was informed that his behaviour was unacceptable he became very hostile towards the staff in general and the Director of Glengarry in particular. He said he knew what was going on in his own mind, and even though he knew it was strange, and that it would look strange to others, he was unable to change his behaviour because he was simply unable to resume accommodation in the room that had previously housed his school books.

When he got back to Glengarry and he was largely on his own, he settled ." (emphasis added) 149 Notably, Dr Diamond makes no reference to the plaintiff having trauma-filled nightmares or immediately resuming his obsessive washing regime upon reading the magazine. Dr Diamond was not asked in his evidence to expand upon what, if anything, the plaintiff told him to account for what is described in the report as a recurrence of "avoidance behaviours, anxiety and depression". The only reference to nightmares linked by their content to his experiences at Farrer was in his report of 22 March 2007 when the plaintiff reported that he had recently had nightmares about his experiences at school where he would wake up anxious and that this occurred about once a fortnight. The plaintiff told Dr Diamond that he was unable to identify what might have precipitated the nightmares although their intensity and frequency was coincident with being in conflict with the Director of Glengarry, presumably in the lead up to his dismissal in July 2005. 150 After noting the plaintiff's appointment as a fitness instructor and his training as a reservist at the Wollongong campus of the University of New South Wales Army Regiment in early 2002, Dr Diamond reports: "…He was only able to attend three training sessions. He became increasingly preoccupied with what had happened to him at Farrer. His symptoms became overwhelming. He had to leave that position and retreat to the familiar environment at Glengarry." 151 Dr Diamond then referred to the panic attack the young student suffered in June 2002 which he understood caused the plaintiff intense distress and an upsurge in symptoms to the extent that he felt that he was not safe with people he did not know, and as a consequence of which he resigned his Army position. This was said to have been the source of bitter disappointment as the plaintiff had struggled for many years to be accepted into the Army after a long history of asthma during childhood. Dr Diamond went on to describe the plaintiff burning his Farrer school books and being overwhelmed with feelings that people around him were going to hurt him, that they no longer liked him and of being unable to sleep in his allocated accommodation, taking up accommodation first in the computing storeroom and thereafter in a tent. Dr Diamond also reported that according to the plaintiff the tent was not discovered in 2002 and eventually another flat became available which the plaintiff accepted and was able to manage better in that environment.

152 In November 2006, at the request of the defendant, the plaintiff attended the rooms of Dr Roberts. He reported to Dr Roberts that his first semester at Glengarry commencing in August 2001 was a good experience. 153 In so far as the Myall magazine incident was concerned he said that the magazine had been posted to him in 1997 but that he had not looked at it until he went through it with a friend and noticed that several members of his class had referred to him in their profiles either directly or inferentially. He said: "…I didn't make a big deal at the time because my friend was there, but I was very annoyed and very frustrated after it . I left from Tamworth and went to Mollymook for a week and didn't feel comfortable there. I went to Kangaroo Valley on campus because I was not feeling comfortable in Mollymook. It was still holidays. It was just before the end of 2001. At the start of 2001 I started enlistment for Army Reserves and I'd always wanted to do that, if not politics…" (emphasis added) 154 Dr Roberts goes on to report the fact that despite the concern of the Department of Defence at the plaintiff's pre-adolescent and adolescent asthma, he was eventually selected for inclusion in the Army Reserve in March 2002. The plaintiff told Dr Roberts: "…Things were starting to go downhill again at the time . (However) work was fine and there were no problems and I got to the University of Wollongong Regiment. On the first night, I was in charge of fitness training. It was good and a bit challenging, but it was a good responsibility initially, but things were eating away at me about the school …" (emphasis added) 155 It is clear from what follows in Dr Roberts' report about the young boy who suffered the panic attack, that when the plaintiff was referring to "things eating away at him about school" he was referring to Glengarry and not to Farrer. When reporting about the boy's panic attack and his reaction to it he said that he would never have forgiven himself if he had not given the boy help. He added: "I didn't think it was special and it wasn't hard and why wasn't it there for me at school? It fell apart from there . There were two old school books in the room at Glengarry and I couldn't go back into the room because the books contaminated the whole room. I resigned from the Army at that point and stayed in Kangaroo Valley for the whole holidays. There was no other accommodation and I couldn't go into my room without feeling dirty and uncomfortable..." (emphasis added) 156 He then went on to report that he moved from his room into a storeroom for 50 days and that he ate in the dining hall until he was discovered by a staff member after which he moved into a tent which he concealed and camouflaged for a period of two months. He said: "…I couldn't bring myself to go into my room. I started worrying about going out to places and things being dirty and started to think about suicide. It was obvious to other staff there was something wrong and it was the beginning of the end of working there. It took them two years to get rid of me. The way I was treated, I was sure it wouldn't last that long. I wasn't able to tell anyone or move room until the end of 2002, but I was told I had to share with someone in the next year and there's no way I'd share and I went back in the tent again early the next year. I stayed in it for term one." 157 He told Dr Roberts that throughout this time, and up to mid 2003 when he was accommodated on his own, he washed occasionally but only when he went out and touched something that a lot of people had touched. He said: "…It wasn't a problem on campus, but I was nervous to go into Kangaroo Valley, which was a one street town. I went once every three weeks and it was quite rare. I didn't have to cook or look after myself. I didn't go to Tamworth or Mollymook … and it was very rare I'd leave the campus. That went on throughout 2003 until the end. I was invited to go to a friend's place in Portugal (at the end of that year) and it took me a lot of getting ready and preparing for, but I did go." 158 In the course of Dr Roberts administering a Clinician Administered interview for Post Traumatic Stress Disorder (CAPS) the plaintiff described many symptoms of the disorder without meeting the full criteria. Dr Roberts noted with regards to Criterion B, which involves re-experiencing phenomena, that in 2002 (when what she describes as his "problems began") he would have daily or almost every day intrusive thoughts about what had happened at school. At the time of testing these were reported as severely distressing initially, but much less so over the preceding month and not at all in the last week. He also indicated that since 2002 he has had unpleasant dreams about these incidents that were initially severely distressing. 159 A week after attending upon Dr Roberts, the plaintiff attended upon Dr Brown, again at the defendant's request. She also took a detailed history from him. In so far as reading the Myall magazine was concerned she reported as follows: "…He said that he was angered by seeing how many of the students put his name down as one of their dislikes and with one student even commenting that his biggest regret ever had been in meeting Mr Gregory. He said that he became " extremely annoyed " that such comments had been allowed to be published and he described that during the year 2002 he felt as if "things were falling apart"…". (emphasis added) 160 The plaintiff then recounted the incident where the young boy had suffered a panic attack and how he realised it would have been simple for someone to have offered him assistance at Farrer. He again described feelings of anger. He also recounted the onset of feeling that the books from his high school years felt "dirtied" and that he burned them and washed down his room after which he slept in the storeroom and the tent. She reported that the plaintiff stated that from the time he was found sleeping in the storeroom he felt the school officials were looking for a reason to "get rid of him".

The plaintiff receives the first formal letter of warning 170 By letter dated 13 December 2002 the Director of the Glengarry campus addressed what he referred to as a variety of situations, each of which were in the context of the plaintiff's interaction with the boy he had formed a close friendship with during the course of the last term, which was said to have given rise to concern and comment from both staff, students and the parents of the student. Prior to sending the letter the Director spoke to the plaintiff on two separate occasions about his relationship with the boy, and what he considered was a need for the plaintiff to be careful that his interactions did not give rise to any possibility of accusations related to child protection violations. He directed the plaintiff to only spend time with the boy in public settings and in the performance of his professional duties as a staff member. The plaintiff gave evidence in the proceedings that he refused to curtail his relationship with the boy because of what he described as a level of trust and respect that had developed between them and that it would "not be right" to simply sever the relationship. 171 Whilst the Director made it clear in the letter of warning that he had no evidence that his earlier directive had not been complied with, he was of the firm view that the plaintiff had inappropriately pursued the boy at the end of year dinner at the Scots campus at Bellevue Hill, at Speech Day and by placing several phone calls to the boy's family home against the express wishes of the boy's father, and that it was that conduct that prompted the writing of the letter. The letter required the plaintiff to read and initial each page of The Scots College Child Protection Policy and Staff Behavioural Expectations. He was advised that any breach would be grounds for dismissal. 172 By email dated 21 March 2003 the Director expressed concern about what he described as the plaintiff's "current health and stress levels" and suggested a meeting to discuss his concerns and the plaintiff's recent behaviour, including the time the plaintiff was spending around the boys' dormitory and a poster displaying a swastika that the plaintiff had on display in the storage area of the computer room. He also expressed concern about the fact that the plaintiff had been sleeping in the bush. He informed the plaintiff that this was both attracting comment from the students and was not the standard of professionalism that was expected of staff. It would appear that the Director was unaware that the plaintiff first started sleeping in the tent the previous year after unsuccessfully sanitising his allocated accommodation, but simply understood that the plaintiff had been sleeping in a tent in the early part of 2003 because he was unhappy about the standard of the accommodation that was provided for him, and because he had made it clear that he was unwilling to share his accommodation with anyone else. He did however note that the plaintiff was currently staying with other staff members which was satisfactory to all concerned. 173 On any fair reading of the email the Director's tone was conciliatory and its content fair and balanced. He made it clear that he was concerned to seek clarification from the plaintiff about various matters lest his behaviour produce negative and unwarranted consequences, either personally or professionally. He noted that the plaintiff's work at Glengarry to date had shown initiative, talent and diligence. He was concerned that those attributes were not overshadowed by the plaintiff unintentionally communicating messages to others that were not, in fact, in keeping with his actual intention or meaning. 174 The plaintiff was unwilling to meet with the Director without a union representative being present. He also wrote to the senior administration of the College by email of 10 April 2003 complaining that concerns he had raised numerous times with the Director, including concerns about accommodation and his current teaching and IT support role, had not been acted upon or responded to appropriately or fairly, and in some instances not all. The plaintiff proposed a meeting with senior staff. 175 On 27 May 2003 the plaintiff attended a meeting with senior administrators and the Director of the Glengarry campus. The notes of the meeting indicate that the Director was to continue to develop housing options suitable to the plaintiff, while the plaintiff was to develop an IT job proposal in keeping with his teaching responsibilities. The plaintiff was encouraged to exercise sound judgment and to clearly communicate his intentions. From the school's perspective it would appear that the balance of the school year 2003 was without further incident. The plaintiff suffers his first panic attack 176 In January 2004 the plaintiff was invited by the parents of the young boy he had helped in June 2002 to visit them at their house in Portugal. He said that the two weeks prior to leaving was a struggle. He said he felt nervous and anxious in the airport and in the air he was guarded against any perceived threats from those around him or being touched by those around him. After being collected from the airport in Portugal he spent the next two weeks in the company of his friends, visiting museums, members of their extended family and dining out. At no time did he feel threatened or anxious in their company. He planned to travel by car alone to Seville and Gibraltar, a 4½ hour drive from his friends' home, but the journey was cut short by the onset of a panic attack on arrival in Seville. He described feeling physically ill, being unable to get out of the car and that he simply drove around and around the city before he telephoned his friends and advised them he was returning to their home. The boy's father then suggested he needed medical assistance. 177 On his return to Australia he consulted with Dr Bezic on three occasions, the first in March 2004 and the last in May 2004. He was initially prescribed 50mg of Zoloft to treat depression which was doubled a month later and increased to 150mg at the third consultation. By this time the plaintiff reported that his compulsion to clean himself had abated a little as had the agoraphobia, but he had continuing problems with sleeping averaging only four hours per night. He reported that overall his mood had improved. Dr Bezic referred the plaintiff to a psychiatrist in Kogarah in July 2004. The plaintiff gave evidence that he was unable to attend because of fears of entering a built-up area. He did however attend on Ms McKern at this time. In her report of August 2004, after administering a clinical test for Depression, Anxiety and Stress she scored him in the extremely severe range for depression and anxiety and the severe range for stress. The 2004 school year at Glengarry 178 Despite the experience in Seville and the progressive onset of symptoms of depression and anxiety that were within months to meet diagnostic levels, the plaintiff resumed his teaching responsibilities at the commencement of the school year in 2004. He described a further deterioration in his relationship with other staff at this time. When asked in his evidence to describe what he meant in that connection he said: "There were only two staff members in the teaching staff that I really spoke with. In staff meetings I had quite hostile exchanges with the Director and other staff members, and when I made or brought up issues of concern they were ignored." I do not interpret this as reflective of his subclinical psychiatric state. 179 There was a further confrontation between the plaintiff and the Director on 28 January 2004 when the plaintiff was informed that the IT position was to be filled by a casual teacher. Although the meeting started as an informal conversation in the staff office, the plaintiff's attitude to being informed of the staffing decision was such that the Director decided the conversation should continue in private. He took the opportunity to speak with the plaintiff in his office about what he regarded as his improper use of the school vehicle over the holiday period. Apparently the plaintiff had requested the use of the vehicle to travel to Sydney. Approval was given on the implicit understanding that the plaintiff would pay for the fuel and would be the driver of the vehicle. The Director had assumed that the plaintiff was unable to use his own vehicle because it not yet been registered. In fact the plaintiff had arranged for a contract driver to drive him to the airport in Sydney and then to pick him up from the airport on his return from overseas and had given the driver the key to the main Glengarry campus office to access the keys to the school vehicle. In his evidence the plaintiff did not suggest that his use of the contract driver was in any way referable to a state of anxiety or nervousness. The Director was critical of the plaintiff's poor judgment in using an outside driver and the school vehicle in circumstances where it would be uninsured and arranging to be collected from the airport for a return trip without the Director's knowledge or permission. He saw this conduct as part of a larger pattern in which poor judgment and poor communication resulted in the plaintiff acting in ways that were seen by others (but not by himself) as inappropriate, offensive or dangerous. 180 In 2004 the plaintiff also commenced external study for a Diploma of Business, which he successfully completed that year. He also transferred his Master of Defence course from the University of New England to the Australian Defence Force Academy, which he also studied externally that year. 181 At the conclusion of term in 2004 two staff members independently documented a number of incidents concerning what they regarded as the plaintiff's poor leadership, and concerns about the plaintiff's interactions with students. In itemising the different incidents both staff members expressed concern that the plaintiff had engaged in what they considered to be inappropriate conversations with the students, including sexual references and innuendo and which they felt transgressed the boundary of a student/teacher relationship. There were also concerns about the plaintiff discussing with students the use of a soft drink bottle as a silencer for a rifle, physically integrating himself with the boys when discussing dormitory issues and fraternising with the boys while staff were endeavouring to guide discussions and share ideas. One staff member expressed reservations about working with the plaintiff in the future, as he was not able to discuss these matters with the plaintiff who avoided any interaction at the end of term.

182 During the annual holidays in December-January 2005 the plaintiff holidayed with his parents at Mollymook. He said he stayed in the house most of the time, rarely going to the beach or swimming in the surf, because he felt threatened when he left the house. He said he only ran on the beach when it was late and no one was there. The 2005 school year at Glengarry 183 At the commencement of the new school year in February 2005 the Director sought to schedule a meeting with the plaintiff to discuss the matters raised by staff in the previous year. At the end of that month and prior to any meeting being convened, the Director received a further complaint from a staff member about the plaintiff after a field trip to Mount Barron where he was heard to have inappropriate conversations with the boys, belittling the achievements of some of the boys in scaling the mountain, and countermanding instructions given by other staff members to motivate students to deal with the heat and difficult terrain. 184 On the 6 April 2005 a meeting was convened (it seems at the plaintiff's insistence) where the Director itemised a list of concerns about the plaintiff's behaviour which were largely dismissed or denied by him. At the end of the meeting the Director informed the plaintiff that various of the matters would be further investigated but, based on what had been discussed, he intended to issue a second formal letter of warning. The plaintiff receives a second letter of warning 185 The second letter of warning issued on 9 April 2005 and set out in detail the plaintiff's behaviour that, in the view of the Director, remained at issue following further investigation by him. The principal area of concern fell under the general rubric of inappropriate interaction with students and inappropriate behaviour on the field trip. The Director also itemised several situations where, in his assessment, the plaintiff's professional judgment and his actions when carrying out assigned duties or dealing with school resources were wanting. These included the use of the vehicle for private use in January 2004, consistent defiance of a directive as to the use of other school equipment and the failure to report an incident where a student had exposed himself to a trainee, which in the view of the Director had significant and extensive repercussions putting the school and its staff, including the plaintiff at risk, to say nothing of the time and energy needed to address the situation. The letter of warning goes on to state as follows: "Over the course of your employment at Glengarry a variety of supports have been put in place to clarify expectations and address concerns which have been raised regarding your work responsibilities (including appropriate judgment and communication). Several of the supports include:

The above behaviours must change as they seriously compromise the duty of care required of you as a professional teacher in the employ of The Scots College. These behaviours are grounds for disciplinary action and could lead to dismissal if not effectively addressed over the next term." 186 On 6 May 2005 the plaintiff responded to the Director in writing. He indicated that it was not his intention to reply in full but that his letter was simply to notify the Director that he had only recently received the letter of warning. He expressed irritation because the letter had been left in his pigeonhole. He also set out what he described as campus issues that he considered were not being adequately addressed by the school. In particular, he drew attention to the fact that there were a number of incidents where students had been bullied by other students and/or members of staff. He claimed that he was being used as a "scapegoat" for a general lack of cooperation between the students and staff and suggested that instead of counselling, a mediation should be arranged to ascertain the accuracy of the allegations made against him to address what he saw as a lack of discipline displayed by students as a result of their frustrations with staff and to examine points of concern that he had raised in staff meetings. A week later the plaintiff forwarded a detailed and articulate response to each of the matters raised by the Director in his correspondence. In summary, he did not accept that any of the matters complained of had any foundation and that the specific complaints about his inappropriate dealings with the boys were overstated and inaccurate. He expressed the belief that the allegations were made in the context of a concerted campaign of harassment and intimidation with a view to procuring his resignation. 187 On 17 June 2005 the plaintiff was advised by the Head of the Senior School of the College that he was suspended on full pay pending an investigation into two incidents that had occurred in the two intervening weeks. The first incident involved a boy sustaining injury to his eye after climbing in through a classroom window. The boy had apparently been left unattended with other students for one to one and a half hours when the plaintiff sought to address a complaint that some other boys were being physically bullied and should be accommodated outside of the dormitory until the bullying incident could be properly addressed and the perpetrators properly identified. The injured boy's father lodged a formal complaint with the school and requested the Director to investigate the incident. The second incident related to the plaintiff allegedly entering marks for an important assessment task the students had not undertaken as provided for in the curriculum. 188 The plaintiff responded to the letter of suspension again in a detailed and articulate manner, defending his conduct on both accounts. A further investigation was undertaken. The Head of the Senior School advised the plaintiff that students, nursing staff and other staff members were interviewed and that he was satisfied both incidents constituted professional misconduct. The plaintiff's employment was terminated effective 12 July 2005.

192 An expert's conference was convened at which Dr Diamond and Dr Brown were asked to address a number of settled questions. That conference exposed very considerable disagreement as to the precise nature of the psychiatric illnesses from which the plaintiff has suffered in adolescence and then again in early adulthood and from which he suffers currently, such that Dr Diamond insisted that his primary reports remained the best expression of his views. The extent to which the symptoms of the plaintiff's psychiatric illness predated the estimated date of diagnosis (whether that be in late high school in Dr Brown's view or earlier in Dr Diamond's view) and the severity of the symptoms associated with his condition has an obvious bearing upon an assessment of damages for non-economic loss in the Farrer years. 193 A particular source of disagreement between the doctors was whether the plaintiff has suffered from post-traumatic stress disorder at any relevant time. Resolving this disagreement bears upon the question whether the plaintiff has established that the anxiety disorder, with obsessive-compulsive symptoms, and a panic disorder with agoraphobia associated with a major depressive disorder, from which it was agreed the plaintiff suffered between 2002 and 2004 (and to a lesser extent from which he currently suffers), is causally related to the defendant's breach such as to entitle him to recover damages beyond an award for non-economic loss in the Farrer years. 194 Although the disagreement between the psychiatrists as to the causative link between the plaintiff's illness as an adolescent and as an adult was not resolved in cross-examination, the defendant conceded in submissions that the evidence established that the mistreatment the plaintiff suffered at Farrer materially contributed to him developing both an anxiety and depressive disorder as a student in senior school although there was disagreement about the severity of both conditions for the purposes of subsisting damages. 195 The defendant relied upon the evidence of Dr Brown who was of the opinion that both conditions were of moderate severity while the plaintiff relied upon the evidence of Dr Diamond that the depressive disorder with melancholia was severe and that the intensity of the plaintiff's obsessional thoughts associated with being contaminated and accompanied by compulsive cleaning rituals also placed his anxiety disorder in the severe range. 196 It was also generally acknowledged by each of the experts, even if implicitly, that despite the necessity for depressive disorders and anxiety disorders to fall under different headings for diagnostic and classification purposes, in that depression is recognised as one of the primary mood disorders and anxiety disorders as disorders of states of perception and arousal, there is an appreciable interconnection and overlap between the two conditions in the clinical setting and degrees of severity are often not able to be clearly differentiated.

If you explore that with them, it's often around their experience of not being helpless, it was they who were doing the mutilation, and it's they who can stop it. So it's a symbolic or metaphorical control, although the actual action is self-mutilation. I would understand that in the context of Mr Gregory in that, at times of extreme helplessness, he discovered this practice and he probably - well I think according to what he told me, he found it to be a way of releasing some of his distress temporarily, but then of course, he would feel ashamed and cover up his wounds and feel more vulnerable in case somebody saw them. So he never saw the problem, it was just a repetitive compulsive behaviour that would fit within the OCD component to some extent anyway." 198 Dr Diamond was equally firmly of the view that secondary to his experience of being bullied, the plaintiff's had a disrupted adolescent development which has impacted adversely on his development from early adolescence and which stymied his emotional and social development as an adult such that the range and severity of the psychiatric disorders he has suffered from, both as a child and an adult, inclusive of an obsessive-compulsive disorder and a depressive disorder in 1994, and a panic disorder with agoraphobia and a major depressive disorder ten years later, are a direct result of the effects of being mistreated at high school and being severely traumatised as a consequence. 199 Dr Brown agreed that it was appropriate to diagnose the plaintiff as suffering from a generalised anxiety disorder (of which an obsessive-compulsive disorder is a type although she did not diagnose it as such) and a depressive disorder of moderate severity with the anxiety disorder being of greater severity by 1994, when he was in Year 10. She agreed that self-mutilation is a recognised means of dissipating anxiety in a chronic sufferer and that a lack of support (or perceived lack of support) from within the school environment and the home environment would likely have impacted negatively on the plaintiff such that the various strategies he developed to deal with and protect himself against anxiety and depression became entrenched behaviour. She also accepted that the cumulative effect of sustained physical and psychological abuse, would heighten and increase the plaintiff's level of anxiety and depression and would explain the progressive presentation of depression and anxiety symptoms and their ultimate crystallisation into a recognised disorder. On the assumption that the plaintiff's evidence about the fact and extent of his distress, upset and generalised anxiety and accompanying feelings of intense loneliness were genuine (as I have found them to be), she confirmed that it was appropriate to diagnose the plaintiff as suffering from a psychiatric illness as an adolescent in 1994 with symptoms presenting before that time. She maintained the view, however, that the obsessive-compulsive symptoms the plaintiff exhibited in senior years at high school fell below diagnostic levels due to there being insufficient history about the severity or frequency of his obsessive-compulsive symptoms and the fact that there was no patent need for medical intervention, although she agreed that the mistreatment he was subjected to may have precipitated symptoms that were presenting at this time and that he may have been successful in camouflaging the extent of his symptoms thereby deflecting the necessity of treatment. 200 With the benefit of having reviewed the plaintiff's evidence, and the history given by his mother to the general practitioner in 1994 and 1995, together with the consistency of his reported compulsive use of hospital grade detergent on a daily basis over an extended period of time from 1994 to the extent of burning his skin and his determination to resist treatment, I accept the plaintiff's case that he suffered from an obsessive-compulsive disorder at shifting levels of severity from 1994 until he left Farrer in 1996.

201 Dr Brown also emphasised that in psychiatry very few disorders have a single cause and that multiple contributors or causative factors are the norm. She emphasised that this is also a typical pattern that presents with anxiety disorders. She was of the view that in late childhood and early adolescence the plaintiff was affected to a significant degree by his experience of delayed puberty and his height together with conflict in the home, despite the fact that he denied that any of these matters impacted adversely upon him, whether that was due to an unwillingness on his part to acknowledge their effect or because he was unable to do so for other reasons connected with his personality profile. From her review of the paediatric records and the letter the plaintiff wrote to the counsellor in 1994, she was however persuaded that these factors, in addition to his experiences at school, were a source of emotional stress. I have come to a similar view. She also took into account that the plaintiff was immature for his age as an adolescent, that his self-esteem was low and his interactions with others were problematic for that reason. The conjunction of these factors, in her view, contributed to his developmental problems, including the presentation of symptoms of anxiety and depression and ultimately to the evolution of an anxiety disorder in diagnostic terms in 1994, however she did not ultimately disagree with the proposition, put to her in cross-examination, that his mistreatment in the school environment was also a materially contributing factor. 202 She also fairly acknowledged that his particular personality and temperament, including his health and development issues, predisposed him to conflict with others such that he became increasingly marginalised and vulnerable to being ostracised and bullied. For this reason, and since I am also satisfied that these factors were operating concurrently with his mistreatment at the time the plaintiff was diagnosed in 1994, by application of the egg shell skull principle, the defendant must bear the full extent of the damage suffered by the plaintiff even if it were possible to establish that the injury to this plaintiff is more severe than would have been a case were a young person within a normal range of robust mental health to have been exposed to the same mistreatment. 203 I am satisfied that whilst a student at Farrer the plaintiff was in fact subjected to sustained mistreatment of various kinds both subtle and overt and insidious emotional brutality against which he had no defence. I am also satisfied that his coping mechanisms, ranging from violent outburst to stubborn denials and self-harm, were ultimately reflected in the entrenched symptoms of a chronic anxiety and depressive disorder of fluctuating severity. As he progressed from middle school (in 1994) to senior school he became both more indifferent and resilient to the taunting and ridicule and able in that way to resist more severe mental harm.

205 Dr Diamond was of the firm view that the re-presentation of obsessive-compulsive symptoms after the plaintiff read the Myall magazine at the end of 2001, and what he understood as the recurrence of nightmares from that time where the plaintiff relived the trauma he experienced as a school student, provide the explanation for the first significant sign of a relapse in the plaintiff's psychiatric functioning in late 2001-2002. In coming to that view Dr Diamond was particularly impressed by the fact that there was no other temporal or contextual explanation for the plaintiff's behaviour. While the absence of evidence of another sufficiently proximate stressful incident or traumatic exposure does not compel the conclusion that the trigger events were causative, I regard it is a significant factor in support of such a finding. 206 The plaintiff's reaction to the boy who was in distress in June 2002 was an additional key event in what Dr Diamond considered to be the reactivation of a psychiatric condition which had been dormant up to that point in time as distinct from it being in full remission. Dr Diamond interpreted the five years after the plaintiff left high school where he was asymptomatic as a reflection of the plaintiff's subjective experience of his underlying illness simply not having the capacity to disable him as distinct from it providing evidence that his illness had resolved. He considered it wholly unreasonable to suggest that there was no material connection between what happened to the plaintiff in his formative adolescent years and the severe anxiety disorders and mood disturbances he has suffered from since that time unless they were a completely separate manifestation of illness bearing no relationship at all to his previous experience, a view which he was unable to accept. Given that the compounding effect of the triggering events in 2001-2002 were traceable directly to the past trauma Dr Diamond was unable to accept that the plaintiff's illnesses as an adult are materially unconnected with his experiences at high school.

212 Dr Diamond next saw the plaintiff in March 2007 after he had been dismissed from The Scots College in July 2005. In the report that was furnished after that consultation Dr Diamond was of the view that the plaintiff continued to present with behaviour which accorded with his diagnosis in 2004 and that the plaintiff was suffering from agoraphobia with panic attacks with evidence of an ongoing obsessive-compulsive disorder. At that time he also saw evidence of major depression, without features of melancholy, but nevertheless requiring a significant dose of maintenance antidepressant medication. 213 In his report of March 2007 Dr Diamond noted features suggestive of chronic post-traumatic stress disorder without citing that as a diagnosis. In a further report dated 5 December 2007, he addressed himself to a number of specific questions posed by the plaintiff's instructing solicitors directed to impairments to the plaintiff's earning capacity. He did not consult with the plaintiff for the purposes of preparing that report. However in that report, together with confirming his diagnosis of agoraphobia with panic attacks, and that the plaintiff remained symptomatic from the obsessive-compulsive disorder, Dr Diamond also diagnosed chronic post-traumatic stress disorder with residual symptoms that emerge with trigger events. 214 In his evidence Dr Diamond explained the differently formulated diagnosis he offered in December 2007 on two bases. Firstly, as a result of what he said was a relaxation of the definitional restriction for post-traumatic stress disorder in DSM-IV based on research and the opinions of colleagues and commentators in the general practice of psychiatry between the 2004 and 2007, such that it is now generally acknowledged that the concept of cumulative stress from traumatic events may form a basis for a diagnosis of post-traumatic stress disorder. He was not tested further on the extent of the research or it source and it was not suggested to him that his experience as a practitioner was not a sufficient basis for him to express these views or that he was alone in holding them. Secondly, it was only in 2007 that he became aware of the plaintiff's full range of symptoms, (that is beyond those associated with obsessive-compulsive disorder, depression and agoraphobia with panic), namely nightmares relating specifically to the experiences at Farrer, and what Dr Diamond described as "flashback intrusive image evidence" and the plaintiff's preoccupation with thoughts about the school. In the course of explaining the reasons for his reviewed diagnosis Dr Diamond also said:

216 In the absence of a psychiatric disorder that is trauma based (Dr Brown pointed out that a diagnosis of obsessive-compulsive disorder is not generally considered to be trauma based - a view also held by Mr Borenstein as a clinical psychologist) she was of the view that the panic disorder and agoraphobia, which had its onset in the plaintiff's adult years, was independent of his experiences at secondary school, particularly given that the panic disorder occurred in the context of the plaintiff travelling alone overseas in 2004 and in circumstances where the plaintiff reported to her that he did not recall any particular triggers or precipitants to the panic attack. I note in that connection that Mr Borenstein and Dr Roberts were of the joint view that the plaintiff did not satisfy the full criteria for post-traumatic stress disorder either in November 2006, when he was seen by Dr Roberts or in March 2007 when he was interviewed and assessed by Mr Borenstein. Mr Borenstein and Dr Roberts identified symptoms or features of the disorder but they did not identify full criteria. Mr Borenstein said: "The clinical picture of PTSD necessarily involves a predominant - a manifestation of symptoms on a recurring basis, such as intrusive recollections, dreams, nightmares, et cetera of which Mr Gregory in fact did report some of those symptoms. But his primary presentation is that of obsessive-compulsive disorder. And so in that instance the OCD or obsessive-compulsive disorder is the primary diagnosis even though there are post-traumatic features to his presentation." 217 After considering the views of each of the experts and the different approaches and analysis they gave to the complex questions they were asked to address, I favour the evidence of Dr Diamond and accept that the cumulative effects of trauma form a legitimate basis for a diagnosis of post-traumatic stress disorder beyond the mere presentation of symptoms associated with that condition. That leaves open the question whether the trigger events were sufficiently traumatic to explain the plaintiff's illness between 2002 and 2004 (on Dr Diamond's analysis because his post-traumatic stress disorder was present but simply asymptomatic up to that time) or whether his condition emerged as a fresh presentation of the particular anxiety and mood disorders he suffered as an adolescent. Dr Brown's evidence on the sufficiency of the Myall incident as a triggering event

218 Dr Brown observed that it was very unusual for a person to suffer a fresh onset of anxiety or depression after an extended period without displaying or experiencing any symptoms consistent with either condition in the interim, but, accepting that it was possible, in her view, the likelihood of it occurring was dependent on the type of stressor the individual has been exposed to, the psychological profile of the particular individual, and the degree of connection between the stressor and the event or events that resulted in anxiety or depression at the earlier point in time. Where a traumatic event is said to be re-experienced by exposure to a subsequent event she emphasised the importance of looking at each individual case in order to determine whether the particular subsequent event is likely to have a sufficient connection with the primary event to induce a relapse or recurrence of symptoms. In so far as the plaintiff was concerned, Dr Brown was of the view that in the absence of what she could identify as a significantly sufficient stressor, the recurrence of the anxiety and depressive symptoms the plaintiff experienced from early 2002, and the progressive onset of panic type symptoms and avoidance from that time, were most likely associated with a separate or spontaneous onset of illness unrelated to his mistreatment at secondary school. 219 I have already highlighted the divergence in the accounts the plaintiff gave to Dr Diamond in December 2004 and to Dr Brown in November 2006 and the evidence he gave in the proceedings as to his reaction to the Myall magazine and thereafter. Rather than describing the experience of acute symptoms of anxiety in the immediate aftermath of reading the book, Dr Brown gathered from what the plaintiff told her that his depressive and anxiety based symptoms began to gradually develop and became more severe during the following year. She went on to say, however, that it was not simply the fact of delayed onset of these symptoms that caused her to doubt that reading the magazine was a trigger event of a relevant kind but, equally as importantly, that the information in the magazine was not new to the plaintiff, however embarrassing and humiliating it may have been for that information to be exposed to a family friend. She emphasised that the plaintiff was aware he was unpopular and, in one sense, should not have been surprised that some of his peers may have reflected that in one form or another as part of their Year 12 profiles, despite it being wholly inappropriate for the school to publicise that commentary. In addition, she pointed out that the plaintiff had worked in school environments in the years between leaving high school in 1997 and reading the magazine in 2001 where he confronted the issue of bullying from a teacher's perspective with a robust determination to deal with it without it being productive of any adverse psychological reaction. In short, in her view, there were a range of potential triggers for the plaintiff to develop anxiety or depressive type symptoms because of their reminding effect well before he was confronted with the magazine in 2001. In these circumstances, she thought it more likely that the emergence of depressive symptoms after he returned to the Glengarry campus and before the school year commenced in 2002, symptoms that became pronounced as the school year progressed, while temporally and contextually related to reading the magazine causing the plaintiff to ruminate over his past life events, were not causally related in a clinical sense. Dr Brown did not challenge the plaintiff's perception of the link between reading the magazine, his mistreatment at Farrer and his disturbed emotional state, but adhered to the view that to attribute his condition at that time to his troubled past did not equate with the magazine being a stressor in the clinical sense. 220 When she was taken by Mr McIlwaine to the plaintiff's evidence where he described being upset, angry, embarrassed and humiliated when reading the magazine she agreed that they were words of distress and upset and, from a subjective point of view, he was doubtless experiencing distress and anger. However, viewed objectively, she did not regard his reaction as indicating a severe emotional decompensation such as might explain, in clinical terms, the plaintiff's development of more acute emotional problems in the months that followed. Similarly, the argument with his parents and his decision to leave the family home and return to campus was not in her view significant in clinical terms. When it was suggested to her that in the clinical setting she had failed to thoroughly investigate with him what his feelings were beyond reportedly being annoyed at the publication she said: "I would have, had I been alerted to the possibility that he had had a more severe reaction, from my understanding of his description of being extremely annoyed, that was the limit of what he said. He did not tell me that he was humiliated by this."

221 She also observed that the plaintiff's account of having reacted in a marked and quite profound fashion to reading the magazine was suggestive of factors other than his memories of his school experiences playing a significant role in his state of emotional decompensation at this time. She was not able to identify what those factors might be. Her views in that sense can only be purely speculative. I am similarly unable to surmise as to what they might be in light of the uncontradicted evidence of his stable emotional state at the time and his considerable social, academic and vocational success over an extended period of time. 222 She also said his reported reaction of severe distress later in the term, exemplified by having to burn the magazine and other school books and then to wash down the walls of his room, appeared to her to be an excessive and idiosyncratic reaction, more likely an indication of his own personality style rather than his reaction to the boy suffering a panic attack being a stressor with the capacity to precipitate a major depressive disorder or the onset of chronic anxiety symptoms. She was of the view that at this time the plaintiff may well have been developing his adult depressive and anxiety symptoms, particularly because the natural history of these disorders often includes an onset at around this stage of life. While this may be so, it is difficult to disregard the fact that this plaintiff suffered anxiety and depression as an adolescent of sufficient severity to justify a diagnosis of an anxiety and depressive disorder. Dr Diamond also emphasised that where a patient who has an obsessive-compulsive disorder that has developed at a particular time in his life for any number of reasons experiences an exacerbation of the condition, it is very commonly a result of stressful life events which operate on the individual as a psychological stressor however benign they may appear to an objective observer. Moreover, although Dr Brown emphasised that the presence of underlying paranoid personality traits may go some way to explaining the plaintiff's reported reaction to reading both the magazine and his school books and that individuals with paranoid personality traits react in a hypersensitive fashion and may see slights where none were intended, a possibility which I accept, I cannot ignore the force of the plaintiff's evidence that he felt overwhelmed by his feelings and unable to moderate his behaviour despite being conscious of it being bizarre and unacceptable. 223 When Dr Brown was pressed to concede the connection between the resurgence of obsessive-compulsive behaviour and the account the plaintiff gave in evidence of washing his room with hospital grade disinfectant in case the school books had come into contact with something in the room, she said that the content of obsessive-compulsive symptoms does not necessarily indicate a causative link although they may do. Similarly, the plaintiff removing himself from his allocated living quarters, first to the storeroom of the computer room and then to a tent in the bush where he slept in the depths of winter, while a further example of avoidant behaviour, did not assist her in understanding the cause of his behaviour in psychiatric terms. She interpreted it as indicating an avoidance of the distress that is a feature of the onset of acute obsessive-compulsive symptoms and that an equally likely explanation for the plaintiff's complex behaviour at this time was that he was experiencing an exacerbation of obsessive-compulsive symptoms as part of an emerging depressive disorder without there being any readily apparent explanation for its onset. She drew further support for that opinion from the fact that he had been able to tolerate the proximity of the school books for some months without incident, valuing them as a teacher's aid and transporting them to Glengarry for that purpose. 224 Dr Diamond, on the other hand, saw the school books as symbols. He said:

"…(The books) are in themselves, quite benign objects…but they are symbols of his time of being in the Farrer environment. Once one makes a connection like that, once one experiences the key event, symbols of that nature can act as triggers, and that's what I think the significance of those books were. Whereas before he could tolerate them in his room, after that (the boy's panic attack), he could no longer tolerate them and he had a strong need to try and get some control over these feelings and thereafter followed a whole series of abnormal behaviours and odd behaviours that denoted an exacerbation of his dormant illness at that point." 225 When asked to consider the history that the plaintiff gave to Dr Diamond in 2007 (a history which was reflected in the evidence he gave in the proceedings), namely the onset of nightmares and the resumption of obsessive washing after touching the magazine, Dr Brown said the significance of those events was dependent upon the duration of the nightmares and the obsessive-compulsive behaviours and their frequency. Although I have doubts about the plaintiff's evidence as to an immediate onset of nightmares and a resumption of obsessive washing on reading the magazine, I accept that he experienced them after reading the magazine for the first time in many years. Dr Brown was also of the view that helping the young student and realising that his own experiences as a student were quite different, was of itself insufficient to precipitate the extent of his emotional distress from June 2002 and the development of psychiatrically significant symptoms from that time. In so far as his negative rumination was of thoughts and memories of high school, Dr Brown observed that equating content with causation is a major issue in psychiatry. She gave evidence as follows: "…Somebody can have obsessive-compulsive ideas that in content may seem to relate to a past event, but that doesn't mean the actual symptoms - the cause of the underlying disorder is the past event. It is natural for whatever problem or difficulty that you are having, for your symptoms to reflect features of your personality style and your past life. For example, individuals who become depressed, if they are the type of people who have always worried about money, they will develop a preoccupation and worry that they have become bankrupt. So the actual content of symptoms is helpful to understand and to consider, but it does not always go to the issue of causation." She went on to say: "…It is possible that the dreams and the feelings that he has described have come about because of this reported resurgence of memories, but there is also the alternative possibility that the conflict with his parents disturbed him and that that led in a general fashion , as I said, to dreams which may be focused in content but not necessarily in causation. Nightmares occur when people are disturbed, for all sorts of reasons. It is obviously a mental disturbance that underlies them, but the content does not always indicate a link. So the argument with his parents might have been sufficient to give rise to nightmares, whatever their content was ." (emphasis added)

226 In Dr Diamond's clinical experience, drawn in part from his training as a psychotherapist, links between a patient's past experience, the resensitising event and the exacerbation or the recurrence of a psychiatric condition are frequently identified. On the basis of the plaintiff's reported reaction to helping the young student, a reaction which on his own account caused him to reconnect with his emotional disturbance and distress as an adolescent, and the clarity of his account, Dr Diamond was resolved to the firm view that the link in the content of the event and the plaintiff's reaction well supported a causal link in diagnostic terms thereby causing the trauma to be re-experienced, as distinct from the events being unrelated and the resurgence of symptoms recurring independently of a relevant stressor. 227 Another point of difference highlighted in the evidence of both doctors was the fact that the plaintiff went into a school environment as a vocational choice. Dr Brown was of the view that the plaintiff's involvement in dealing with bullying as a teacher (which I note occurred at The Armidale School in 1999 and at the Glengarry campus) and his choice of teaching as a profession would not be typical of someone who was traumatised by his secondary school experiences to the point that he developed major psychiatric sequelae as a consequence. Dr Diamond was of the contrary view. He said traumatised people often go back into a similar environment in an attempt to demonstrate mastery over a situation in which they were once vulnerable. In his view, what ultimately unhinged the plaintiff was the empathetic experience with the young student at Glengarry in June 2002, causing him to dwell on why no one offered him that kind of support when he was at school. Dr Diamond cited an analogous situation with police officers who may have been through many traumatic incidents without incident but that a key event may present when they are called upon to deal with something to which they relate personally and which has the effect of unlocking their composure.

228 Dr Brown also saw it as important that the onset or early development of a major depressive disorder is not unusually associated with a person's preoccupation with past events. She described this as "the uncovering effect of depression" rather than necessarily indicating that the depression was caused by the past life events. In the plaintiff's case, she regarded the onset of symptoms of depression and anxiety from 2002 as best explained by the plaintiff's extensive level of underlying personality pathology coupled with the fact that the natural history of both anxiety and depressive disorders is that they fluctuate and that once individuals have had a first episode they are prone to relapse. For this reason she was of the view that the plaintiff would likely have had difficulties in his interactions with others at other times in his life, independently of reading the magazine and she did not regard the fact that the plaintiff associated the shift in his emotional state in 2002 with reading the magazine as persuasive. While she accepted that the link was integral to the plaintiff's perception of events, she did not regard him as a particularly insightful person in terms of him being able to think about or acknowledge other issues in his life apart from his experience at high school, or how the difficulties in his life might, in part at least, be explained by his own role in relation to his dealings and interactions with others. While this may be a reasonable observation it does not persuade me that the plaintiff's reactions were not genuine and their effect disabling. Dr Brown saw his underlying personality profile as characterised by the development of paranoid, obsessional and avoidant personality traits. In her report Dr Brown said: "…Rather than necessarily representing post traumatic effects of bullying, underlying personality vulnerabilities are likely to have repeatedly re-emerged throughout the plaintiff's life and to have exacerbated his vulnerabilities towards developing mood and anxiety type complaints. His distress related to the dismissal and uncertainty about future career directions are likely to have been factors maintaining a report of residual anxiety and depressive type symptoms persisting to the current time."

229 Importantly however, Dr Brown accepted that despite the fact that reading the magazine was not, in her view, sufficient to cause the plaintiff to relapse, the very fact that he had experienced episodes of anxiety and depression as an adolescent of sufficient duration and intensity for diagnostic purposes, rendered him statistically vulnerable to relapse because of the natural history of the condition. The question that immediately presents is whether the statistical risk of relapse, or even the probability of relapse, assists the plaintiff in discharging the onus of proving causation in this case. I am of the view it does. I am also persuaded that the analysis Dr Diamond has undertaken of the plaintiff's psychiatric condition and the explanation for it over many years is the more persuasive. Accordingly, I am satisfied that the defendant is liable for the plaintiff's non-economic loss in the post-Farrer years. I propose to increase the damages award for the plaintiff's non-economic loss by a further 10 per cent to reflect the impact of the plaintiff's psychiatric condition from 2002 to the current time. Post dismissal from Glengarry to the current time 230 After being dismissed from Glengarry the plaintiff moved into his parents' home at Mollymook and in the six months to the end of 2005 completed his Masters Degree in Defence. He also made several job applications during that six-month period. He was offered a position as a training manager with a cleaning company located in the Sydney CBD but did not take up the position as he felt he could not live or work in a built-up environment because of fears for his safety. Despite being awarded his Masters Degree, qualifying him for an internship with the Department of Foreign Affairs and Trade or the Defence Signals Directorate, he did not make an application for appointment to either body as that would also necessitate him moving to either Canberra or Sydney. 231 At the beginning of 2006 the plaintiff commenced a Masters Degree in Business Administration at the Southern Cross University, also as an external student, graduating in May 2008. At the same time he commenced and completed an external course of study in finance with the Financial Services Institute of Australia. 232 Between January 2004 (while still employed at Glengarry) and December 2007 the plaintiff operated ten separate deposit accounts with three separate banking institutions (inclusive of three portfolio accounts with HBSC Equities) and two margin loan accounts with two separate banking institutions. In addition, GBX Corporation Pty Ltd which was set up by the plaintiff at the beginning of 2006 to offer consultancy services to the government, had at least two separate deposit accounts with different banks. Between 1998 and 2008 the plaintiff used nine different share brokers to undertake various share trading transactions, as well as engaging in some online share trading on his own account utilising HBSC Equities. 233 In October 2006 the plaintiff's parents purchased the Breakers Cafe at Mollymook. He claimed in his evidence in chief he had no official role in the company that owned the cafe but that he attended to the books of the company and participated in the day-to-day work of the cafe by making coffee approximately two days a week. This evidence is in conflict with his role as company secretary, a position which was current at least as at the time of making his successful application for appointment as a term teacher at SCEGGS Jindabyne in April 2008, and is a marked understatement of his actual involvement in the cafe. In cross-examination it was revealed that he actively promoted the cafe by entering it in various competitions in 2007 and 2008. In 2007 it won the Cafe of the Year award in the Milton/Uladullah area and was a finalist in the Restaurant and Catering Association Awards for Excellence in 2008. In addition he was aware that the cafe was highlighted on various websites promoting businesses in the local area where the cafe is described as a business "operated by David Gregory and a talented team of chefs cooks and service staff". He agreed the description was accurate. 234 Furthermore, in his evidence in chief (prior to being aware of the video surveillance evidence), he said he was unable to work five days a week because he still felt nervous and apprehensive. He said that his parents were often at the cafe at the times that he worked, either dining or helping out as the work becomes emotionally draining and that he can only do it for short periods. In his cross-examination (also prior to being aware of the video surveillance evidence), he said that although the cafe was extremely busy over Christmas and New Year throughout January and during the Easter holidays and school holidays in July and October with a constant stream of people attending the cafe during the day, he would work only two days a week, maybe stretched to three days a week, and the only occasion he worked five consecutive days was when the company took over the business on 20 October 2006. He claimed no memory of working more than three days a week in 2007. He also gave evidence that he is still using disinfectant after working at the cafe and that he still feels dirty if he touches things.

236 The video footage generally revealed the plaintiff to be greeting and conversing with customers in the course of taking orders, serving food, preparing coffee, taking payments, taking deliveries and clearing tables with every outward appearance of being relaxed, comfortable and amiable showing no outward signs of avoidance of any kind. He was also smiling and animated when speaking with a friend over a mobile telephone in a break between serving customers and engaged in a relaxed conversation with a member of the local community group seated at one of the cafe tables. I also note that whilst there were never more than eight to ten customers in the cafe at any one time, at least in the video footage that was played in open court, there was a degree of regularity in the work performed over successive working days in what closely approximated a full-time working week. He was also observed by those undertaking the surveillance attending the bank at Ulladulla, collecting mail form the local post office and attending the drive-through service at a McDonald's restaurant. He was not seen to leave his parents' home after returning there at the end of the working day. 237 I accept that evidence of this kind does not compel the conclusion that the plaintiff does not continue to suffer from depression and anxiety or that his agoraphobia has resolved. While it is true that he is outwardly composed and apparently in control of his environment, the video does not reveal what efforts he has made, if any, to monitor his subjective emotional state or to compensate in some way for the risks of anxiety overtaking him. That said, the generally agreed position of the experts who were invited to consider the evidence was that it demonstrated that the plaintiff had established an area of safety (or as Dr Diamond described it "a cocoon" or as Dr Roberts described it "a safe haven") within which he could comfortably and productively work and that this was indicative of a moderation in the symptoms associated with his anxiety disorder at least during that particular working week and that the evidence gave no indication of an active depressive disorder at all. 238 In cross-examination Dr Diamond agreed that one of the ways in which agoraphobia is treated is to increase the size of the patient's cocoon, and the number of cocoons, with a view to progressively desensitising the patient so as to enable them to deal with environments, beyond the confined areas in which they feel safe, without being overwhelmed by anxiety. Dr Diamond also emphasised that a treatment model of that kind while theoretically producing a linear rational process of improvement is often different in practice with regression a common problem. In addition, specific desensitisation to one activity does not always generalise to other activities, even across seemingly similar environments. Notably, when Dr Diamond gave that evidence he had not been made aware of the plaintiff's work at the campus at Jindabyne.

239 In Mr Borenstein's view the capacity of a patient to progressively conceptualise a safe environment is in part dependent upon the individual's natural intelligence and motivation and, together with a range of other variables, a person who is intelligent and motivated is likely to have both the confidence and ability to effect change in their behaviour in the therapeutic context. It was agreed that the plaintiff is in this category. I am satisfied that he is a good candidate for behavioural therapy directed to enhancing and building upon the considerable advances he has made on his own initiative to date. 240 In cross-examination it was also revealed that the plaintiff joined the Liberal Party in early 2006 and currently occupies the position of Vice Chairman of the Ulladulla branch - a commitment which at the time of the proceedings he intended to actively maintain. His duties as Vice Chairman include inter alia, chairing the meeting if the Chairman or President is not in attendance. He has also been involved in local politics with the Shoalhaven Council as a member of the Ulladulla and Districts Community Forum since 2006. This involved attending monthly meetings attended by 15 or 20 people and preparing press releases as directed by the Chairman of the Forum over a period of 18 months from 2006. He also had occasion to attend the Shoalhaven City Council meetings and has been involved in lobbying in relation to the Ulladulla Town Centre Development Control Plan. This is further positive evidence of the improvement in his level of social functioning. 241 I note the evidence in chief that he was first prescribed Zoloft to treat his depression in 2004 and that he currently takes 300mg daily but that he continues to feel depressed, even with medication maintained at these levels. He said: "The depression comes and goes in levels of severity. If I have a conflict with or get frustrated by something, then the depression can set in for more than a week, and…I feel continuously depressed…

…It does subside, and I do have periods where I am able to go to work. However it's up and down. There is no logical pattern or any consistency to it, but it comes and goes." 242 He said he was never free of a feeling of sadness and that bouts of depression occur on a weekly basis on average, lasting for anywhere from a day to two weeks, which was the duration of a recent bout of depression. I accept this evidence but note that the depression is now episodic rather than chronically disabling. 243 Together with his work at the cafe since October 2006, his work at Jindabyne within months of the proceedings commencing is also of considerable significance in the context of assessing the extent to which his future earning capacity is diminished by reason of psychiatric illness. It is of additional significance that the defendant was apparently unaware of his recent work history at the time the proceedings commenced, and that the experts called to give evidence were similarly unaware that he had successfully completed a term of full-time work since none had seen him since March 2007 when Dr Diamond and Mr Borenstein furnished their reports. 244 His teaching responsibilities at Jindabyne were specified as English, History, Computer Studies and Geography as well as on-snow duties including driving vehicles as required for transport of students to Thredbo Village. After completing a formal written application for the position in April 2008 he travelled to Sydney to be interviewed by senior administrators of the school (albeit with his mother), then travelled to Jindabyne from Mollymook alone to take up the position formally offered by letter of 27 June 2008. He returned to Mollymook at the end of the term, also on his own. He agreed that he was able to enter and join the campus environment which comprised 70 students and 8 teaching staff despite never having met any of them previously. 245 His written application for the position detailed his teaching experience and addressed his capacity to work as part of a teaching corps. It emphasised his experience with staff management, staff programming, training and coordinating outdoor activities. He nominated a strong interest in downhill skiing, and that he had skied on New South Wales, Victorian and New Zealand ski fields. He claimed a proven ability to provide leadership and work effectively with others in a wide variety of stressful situations. He informed the school that he was currently managing a family-owned restaurant on the south coast of New South Wales, which, due to the seasonal nature of the business, permitted him to take work during the winter term. In his accompanying curriculum vitae he nominated his role as team leader at the inaugural Youth Leadership Forum to promote leadership development in the South Coast community held at HMAS Creswell in October 2005. I note that this was within months of being dismissed from Glengarry. He did not advise those interviewing him of his psychiatric condition, and he did not volunteer that he was dismissed from Glengarry, or that his dismissal was the subject of industrial action. 246 The position involved him teaching at the SCEGGS campus which is three kilometres out of the Jindabyne township, and spending three afternoons a week and weekends at the Thredbo Ski Fields with the students. He said when he applied for the job he was attracted by the fact that the campus was out of town, that the appointment was for a short term and that it offered him the opportunity to push himself beyond his current restrictive living and working boundaries. He gave evidence that he did not travel into the Jindabyne township to visit the nightclubs or bars (although the evidence did show he visited shops and the supermarket in Jindabyne) but otherwise socialised with the staff on the campus and travelled to the ski fields on a regular basis. He was guarded in his evidence as to the extent to which he either accompanied the students on to the slopes or skied with other staff members in a manner which I found frankly unconvincing and likely designed to understate the extent to which he was able to deal with an uncontrolled environment. 247 He regarded the experience at Jindabyne as positive and that, given the opportunity, he would wish to repeat the work experience although he was concerned in cross-examination to emphasise that he would not be attracted to a teaching position in a rural location, even one proximate to a small town, expressing concerns that he could not control that environment. I also consider this as somewhat disingenuous given that he has made application (albeit unsuccessfully) since 2005 to join the Grains Board, the Snowy Mountain Tourism Board, the Agricultural Research and Development Corporation Board, which meet respectively in Orange, Sydney or Canberra despite the fact that he maintained that he could only attend those meetings if he were escorted, and if he couldn't get an escort he simply would not attend the meeting.

…He still scrubs himself with hospital grade disinfectant. He retains insight into this in that he can see that he is not actually at threat from significant bacterial contamination but the compulsion to perform this activity remains compulsive." 259 In Dr Diamond's most recent report of 5 December 2007 (a report which was prepared without further consultation with the plaintiff) he noted that despite the plaintiff's demonstrated intellectual competence, as reflected in his university studies, and an apparent aptitude for work across a range of disciplines, his psychiatric illness experienced during the Farrer years and then again during the course of his employment at Glengarry remain part of his psychological makeup and constitute, for that reason, significant lifelong vulnerabilities. He was of the firm view that this reflected a distinct impairment in the workplace and would likely become manifest in hierarchical authoritarian institutions such as schools where he has to cope within groups and teams, demonstrate leadership qualities, perform under stressful conditions and function assertively and independently. These views must now be made in a very qualified way having regard to the very significant progress the plaintiff has made in working to improve his capacity to work, in particular in a school environment, and participate in social and community affairs. 260 Mr Borenstein assessed the plaintiff in March 2007 within a very short period of the consultation with Dr Diamond and 4 months after the plaintiff was assessed by Dr Roberts. On administration of the Beck Inventories for depression and anxiety the plaintiff yielded scores almost identical to that reported by Dr Roberts. 261 So far as his current complaints were concerned at that time the plaintiff reported to Mr Borenstein being threat sensitive "with new people, unknown people" with his demeanour on examination appearing to be wary, nervous and anxious. He reported that the plaintiff identified anxiety and panic as his major constraints and that he has managed to deal with these symptoms primarily by means of defining safe environments from which he rarely ventures. He noted that: "Mr Gregory currently works as a barista in a cafe at Mollymook, owned by his parents, "I go in and do as much as I can cope with"…". (He later said that he could not work in the cafe without his parents' backup and support, "they fill in when I can't go", such absences occurring several days per week, with anxiety and a propensity toward panic determining whether he is able to attend work.) Mr Borenstein went on to note: "…He prefers to work in the kitchen and help the chef, "I can control that environment". With regards to customers and getting on with people, "I get on OK with retirees". When outside his comfort zone he experiences anxiety attacks with occasional panic. This leads to avoidance behaviour, "I just want to get out as soon as possible". He works on average 10 to 15 hours per week, to a maximum of 20 hours per week. He says of his work hours, "it varies, up and down". He prefers to work in the evenings." 262 Mr Borenstein was ultimately of the view that the plaintiff remains psychiatrically and psychologically disabled by reason of his long standing anxiety disorder and depressive disorder with the most persistent behavioural expression of those disorders being that of an obsessive-compulsive disorder which has become generalised into other areas of his life, particularly the workplace, which in turn limit his ability to function in everyday life. On this basis he regarded his ability to obtain and sustain employment as severely compromised, reflected in his stated ability to work only up to 20 hours per week in the cafe his parents own. For this reason, and because of limitations on his capacity to travel, it was Mr Borenstein's view that the plaintiff's employment would have to be home based or within his safety area. In particular, he expressed the opinion that the nature and extent of his disabilities are such that he will always have difficulty working within a system where he is subject to people in authority and will have difficulty operating in hierarchical systems. He considered that the plaintiff's prognosis was uncertain as he had not participated in any intensive of long-term therapy process and that his current levels of frank avoidance would make it difficult for him to participate in any therapy program unless it were offered in his immediate environment. Given the chronic nature of his condition, Mr Borenstein considered that the plaintiff would need regular psychological input. Two sessions per week for an initial six months, followed by weekly sessions for another six months would need to be undertaken followed by assessment and fortnightly review for a year and close monitoring over the next four years at monthly intervals. Again these views must be read subject to the evidence in the proceedings as to the plaintiff's capacity for travel and proven capacity to work within a school-based hierarchy together with his significant improvement without therapy.

Gregory v State of New South Wales

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Judgment (153 paragraphs)

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Cases Cited (9)

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