Lewis v Doyle - [2022] NSWSC 92 - NSWSC 2021 case summary — Zoe

NSWNSWSC

Lewis v Doyle

[2022] NSWSC 92

Supreme Court of NSW|2021-10-22|Before: Davies J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-10-22

Before

Davies J

Catchwords

110 ALR 449
[1992] HCA 66 New South Wales v Ibbett (2006) 229 CLR 638

Source

Original judgment source is linked above.

Catchwords

110 ALR 449[1992] HCA 66 New South Wales v Ibbett (2006) 229 CLR 638

Judgment (26 paragraphs)

[1]

Judgment

The plaintiff brings proceedings claiming damages from the defendant as a result of injuries he sustained from a number of sexual assaults said to have been perpetrated upon the plaintiff by the defendant in 1986 and 1987.
Section 3B(1)(a) of the Civil Liability Act 2002 (NSW) provides that the provisions of that Act do not apply in respect of civil liability from an intentional act that is sexual assault or other sexual misconduct committed by the person, with certain exceptions that are irrelevant to the present claim.
The plaintiff claims damages comprising general damages, out of pocket expenses, economic loss, and aggravated damages.
The plaintiff particularises in paragraph 7 of the amended statement of claim seven occasions when he claims he was sexually assaulted by the defendant.
In answer to that paragraph of the amended statement of claim, the defendant pleads as follows: 5. In answer to paragraph 7 of the Claim, the defendant: a. Admits that he was convicted by a jury of the said charges on 24 August 2012, but denies the particularised facts as are pleaded and denies the allegations.
The particulars alleged by the plaintiff are as follows: i. In and/or about August 1986 after taking the plaintiff to his home being a unit at South Cronulla, New South Wales the Defendant touched, stroked and/or fondled the Plaintiff's penis by putting his hand down the front of the Plaintiff's underpants and thereafter masturbated the Plaintiff and/or caused and/or instructed the Plaintiff to take hold of the Defendant's penis by placing the penis in the Plaintiff's hand thereby masturbating the Defendant. ii. In and/or about September 1986, the Defendant fondled and/or masturbated the Plaintiff at the Defendant's home in Sans Souci and/or in the Defendant's utility motor vehicle at Kurnell by putting his hand down the front of the Plaintiff's speedo swimwear. iii. In and/or about late November or December 1986, at the Defendant's home, the Defendant exposed the Plaintiff to pornographic and/or indecent material and masturbated the Plaintiff while watching the pornographic material. iv. In and/or about March or April 1987 at the Defendant's home, the Defendant masturbated the Plaintiff while watching pornographic movies. v. In and/or about March or April 1987, the Defendant at his home in Sans Souci required the Plaintiff to perform fellatio and/or to kiss the Defendant's penis. vi. Between April 1987 and September 1987, the Defendant provided the Plaintiff with alcohol and thereafter performed sexual assault upon him and/or required him to engage in sexual acts with the Defendant including encouraging the Plaintiff to masturbate the Defendant and/or to masturbate other boys under the age of 18 at the Defendant's home in Sans Souci. vii. In or about February 1987 the Defendant drove the Plaintiff to his home at Sans Souci and while the Plaintiff was shown by the Defendant pornographic video the Defendant masturbated the Plaintiff and caused the Plaintiff to masturbate the Defendant by taking hold of the Plaintiff's hand and putting it on the Defendant's genitals.

[3]

The offending

The plaintiff was born on 27 August 1971. He was the eldest of three children born to his parents. He attended Padstow Heights Primary School and subsequently Picnic Point High School in Panania. He completed Year 12 and obtained his Higher School Certificate in 1989.
In early 1986, when the plaintiff was aged 14, he began looking for a job. He obtained a job interview at the Hurstville Mecca cinema. He was interviewed by a man named Robert Lopez, and he was successful in obtaining a work trial at that cinema. The defendant owned and operated the Hurstville Mecca Cinema.
In late March 1986 the plaintiff worked his first shift, being an afternoon shift, at the cinema. About halfway through the shift, at around 5:00pm, the defendant approached the plaintiff and started talking to him. The defendant asked the plaintiff who he was, and during the conversation he cracked a few jokes, which the plaintiff said put him at ease.
The defendant and Mr Lopez then had a conversation, during which the defendant told Mr Lopez that he wanted the plaintiff to work at the Kogarah Mecca Cinema, which he also owned, rather than at the Hurstville cinema. The defendant told the plaintiff that the shifts would be better at Kogarah, and that he (the defendant) would look after him.
The plaintiff first commenced working for the defendant at Kogarah Mecca in April 1986. A man named Robert Tenant was the manager of the Kogarah Mecca, and a woman called Denise Elarde worked under Mr Tenant's supervision.
When the plaintiff arrived at the Kogarah Mecca for his first shift, he met the defendant. The defendant gave him a pair of pants to wear, which were part of the uniform that junior staff wore at the cinema. The plaintiff went into the change room to put the pants on. He closed the change room door and took off his own trousers. He was in his shirt, socks and underpants, when the defendant opened the door of the change room and asked, "Are the pants okay?" The plaintiff put the pants on quickly. He said they were about three sizes too small and were extremely tight on him. He said to the defendant, "They feel a bit tight." The defendant walked over, stood in front of the plaintiff, and grabbed the front of the pants around the waist to test the fit of the pants. He put his fingers inside the waistline of the pants. He then obtained another set of pants which were larger and fitted the plaintiff.
The plaintiff enjoyed his work at the cinema. He collected the tickets and showed people to their seats. He also worked in the candy bar. He enjoyed watching the movies, and he was looked after by Robert and Denise.
The plaintiff said that the defendant was never serious, and always kept things light and humorous. He was always friendly and engaging. He was a bit risqué. He would joke about sex, but would not be gross or use vulgar language. The plaintiff said that one always felt special around the defendant, because he was like a celebrity.
After the plaintiff had worked at the cinema for about a month, the defendant told him to bring his family along on a Saturday night. The plaintiff's parents and his sisters went to the cinema and met the defendant. The defendant was very warm towards his parents, and complimented them on the plaintiff and his sisters in a positive way. He allowed the family to watch the movies for free, and offered them free food from the candy bar. The plaintiff said that several times during his employment at the cinema his father would come to the cinema and the defendant would let him watch the movie for free.
The plaintiff said that the defendant loved Chinese cuisine, and the defendant began taking the plaintiff to a Chinese restaurant in the Carrs Park area from time to time, usually on a Saturday afternoon. The plaintiff said that sometimes he would do an extra shift, and the defendant would say to him, "Come in early and we'll go out for lunch". The defendant would also ask him to come into the cinema to help with odd jobs, like loading up the defendant's utility with rubbish and taking it to the local tip. That would normally be followed by a late lunch at McDonalds at Bexley, or at the Chinese restaurant. Sometimes those jobs involved trips to the defendant's home at Sans Souci to pick up or drop off various items of use to him.

[4]

The first incident (Particular (i))

On a Tuesday night in August 1986, the plaintiff said that a huge storm hit Sydney, and in particular, where the plaintiff lived in Padstow. The storm resulted in the Georges River flooding the bridge on Henry Lawson Drive, connecting Padstow and Peakhurst. That meant that the plaintiff's parents could not come to the cinema to pick him up after the movie had finished. The defendant asked the plaintiff how he was going to get home, but the plaintiff did not know. Robert Tenant offered for the plaintiff to stay with him and his family at his house, about a five minute drive from the cinema. The defendant intervened and told Robert that the plaintiff would stay with him instead. The defendant and Robert then had a conversation, with Robert continuing to say that the plaintiff could stay at his place. However, the defendant insisted that the plaintiff would stay with him.
After the evening movie had finished, the defendant closed the cinema, and he and the plaintiff drove to his unit at South Cronulla. They arrived at the unit at about 11pm.
When they arrived, the defendant did not show the plaintiff around but took him straight into the bedroom. The defendant said words to the effect that he did not have another bed for the plaintiff to sleep on. The defendant said that the plaintiff could sleep on the couch but said to him that it would be too uncomfortable. The plaintiff said that the decision for him to sleep in the bed was made by the defendant. Since the plaintiff did not have his pyjamas, he stripped down to his underpants. He then lay down to go to steep. The defendant also undressed and went to bed in a t-shirt and underpants. The lights were switched off, but the lightning outside lit up the unit every now and then. The defendant was talking to the plaintiff.
The plaintiff said he recalls lying on the bed to the left of the defendant. He was on his back. As the defendant talked, the plaintiff felt the defendant touch him on the arm with his hand, which he left there for about thirty seconds before pulling his hand away. A few minutes later, the defendant touched the plaintiff's stomach, and he left his hand there for about thirty seconds before pulling his hand away. He was continuing to talk to the plaintiff. A few minutes after this, the defendant touched him on the leg with his hand. He left it there for about thirty seconds before removing it.
Whilst the defendant was talking to the plaintiff, he suddenly touched the plaintiff's penis on the outside of his underpants. He left his hand there for about half a minute before he moved his hand away. The plaintiff said that at that point he was scared. He said it was like he was paralysed with fear, and felt he was stuck to the bed. He was getting hot flushes from the embarrassment.
The plaintiff said that a few minutes later the defendant put his hand on the plaintiff's groin and felt his penis through his underpants. He left it there for a few minutes and then put his hand down the front of the plaintiff's underpants, taking hold of the plaintiff's penis with his fingers and hand. He fondled the plaintiff's penis for a few minutes, and then started masturbating it. He suggested the plaintiff should take his underpants off, and the defendant assisted the plaintiff to do so. The plaintiff said that the defendant's penis was erect.
The defendant continued to touch and masturbate the plaintiff's penis for about five to ten minutes and then said to him, "Can you touch me?". The defendant took hold of the plaintiff's forearm and moved it so that the plaintiff's hand touched the defendant's penis. The plaintiff said he was scared and paralysed. He rolled onto his side, and his hand which was open was resting on the defendant's penis. The plaintiff said that the defendant started to move his hips up and down so that his penis rubbed against the plaintiff's hand. The plaintiff said that he was not masturbating the defendant's penis, but the defendant was moving in such a way that the defendant's penis was being stimulated by rubbing up and down on the plaintiff's hand. During this, the defendant told the plaintiff how much he was enjoying it, and said to the plaintiff, "Do you like what I am doing?". The plaintiff said he was terrified and did not know what was happening but recalls saying "yes". He felt that the incident was out of his control. He said that the incident lasted for about two hours.
The plaintiff said that he recalled being stimulated for a couple of seconds when the defendant first touched his penis, but then he said there was no feeling at all. Rather, he was just fearful and scared, and he felt that he could not move. He said that he did not get an erection.
When the incident came to an end, the plaintiff said that he stayed in the bed next to the defendant because he was in shock. He said that he did not sleep at all that night.
In the morning the plaintiff got up and got dressed, and the defendant took him to have breakfast in Cronulla. Nothing was said about what happened that night. After breakfast, the defendant drove the plaintiff home to his house in Padstow.
The plaintiff turned 15 on 27 August 1986. The evidence did not disclose whether this incident took place before or after his 15th birthday.

[5]

The second incident (Particular (ii))

In late September 1986, the plaintiff went with the defendant to his house in Sans Souci on a Saturday afternoon. The plaintiff said it was a big house, very modern looking both inside and out. It had a large open living room area with a piano and a pool table. He recalled that the carpets were a light creamy colour, and that the kitchen off the living room was modern also. The plaintiff said that the defendant showed him a small room downstairs where he said he developed photos. The plaintiff said it looked like an indoor sauna that had been converted into a dark room.
The defendant told him that he used to take photos, and it was a hobby for him. He told the plaintiff that he had connections to the modelling world and said, "You would make a good model, you have nice skin".
The defendant took photographs of the plaintiff and then persuaded him to pose wearing a pair of Speedos. The plaintiff said that they were very tight on his body so that his penis and testicles were bulging through the swimmers, and the back of the swimmers were wedged between his buttocks. The defendant then took him out to the swimming pool at the back of the house, where the plaintiff posed for him for about 45 minutes to an hour.
The defendant suggested they go to Kurnell where he would take more photographs of him at the beach. He said they could also go for a drive in the sand dunes.
They drove to Kurnell in the defendant's utility. They arrived late in the afternoon between 3pm and 5pm. When they arrived the plaintiff took off his shorts, and the defendant took photographs of him for about fifteen minutes on the beach.
After that was done, the defendant asked the plaintiff to sit in the back of the utility with him. The plaintiff was only wearing Speedos, and the defendant was wearing Speedos and a t-shirt. The defendant put his hand down the front of the plaintiff's Speedos and started to fondle the plaintiff's penis with one hand. With his other hand he felt the plaintiff's buttocks. The plaintiff said that the defendant had an erection in his Speedos. The plaintiff recalled getting an erection himself, and the defendant started to masturbate the plaintiff's penis. They remained in the back of the ute doing that for about 15 minutes.
The defendant then drove the plaintiff back to his house in Sans Souci, the plaintiff changed into his clothes, and the defendant drove him home.
The plaintiff said that after this incident he started to become quieter personality wise. He felt a bit uneasy about sexual things with the defendant. He saw the defendant as a kind of an uncle but felt that the defendant was controlling because of his authority. The plaintiff said that he started to think of himself as a bit of a freak, and that he was dirty.
The plaintiff said that the defendant knew that he, the plaintiff, was into music, and was aware that he was in a band with his mates. At some time in about October or November 1986, the defendant asked the plaintiff if he had an amplifier. When the plaintiff said that he did not, the defendant said he would get him one. About three weeks later in around November 1986, the defendant came into the cinema where the plaintiff was working and gave him a brand new ten-watt practice amplifier.

[6]

The third incident (Particular (iii))

The behaviour constituting this third particular was said to have occurred in November or December 1986 in the amended statement of claim. However, the plaintiff's evidence was that it occurred in about February 1987. At that time the defendant told the plaintiff about a pornographic movie that he owned and, asked he asked him if he wanted to watch it at some time. The plaintiff was interested because he had seen a pornographic video with some of his mates about twelve months earlier, and he remembered being aroused when he watched the video.
Over the next couple of weeks the plaintiff asked the defendant about when they were going to watch "the porno".
About a week later, the defendant invited the plaintiff to stay over at his place in Sans Souci. He met the defendant at the cinema on a Saturday afternoon. They went for an early dinner at the Chinese Restaurant in Carrs Park.
After dinner the defendant drove the plaintiff to his house in Sans Souci. Shortly after arriving, they both took their clothes off and got into the defendant's bed. The defendant put a video into the video player and a pornographic movie started to play. The plaintiff said it was a 1970s European video which had a documentary theme to it but, after discussion from a narrator about sexual matters, the video would then cut to hardcore orgy scenes of people participating in heterosexual group sex.
Both the plaintiff and the defendant became aroused and the defendant masturbated the plaintiff. He then asked the plaintiff to masturbate him. The plaintiff did that until the defendant ejaculated. The plaintiff said that the whole incident would have lasted about an hour.
The following morning when they woke up, the defendant again touched the plaintiff's penis and tried to masturbate him to erection but without success. The defendant asked the plaintiff to masturbate him. That lasted for approximately fifteen minutes. They then got out of bed, got dressed, and the defendant drove the plaintiff home to Padstow.

[9]

Fifth incident (Particular (vi))

By about August or September 1987, the defendant had allowed the plaintiff to come to the cinema when he wasn't working to watch movies with his school friends for free. The plaintiff would go to the cinema with his friends David Thompson and Mark Procter. After a few weeks the defendant struck up a rapport with David and Mark, and he offered to take the three of them to dinner at the Chinese Restaurant at Carrs Park
After a movie one Saturday afternoon the defendant took the three of them to dinner at the restaurant. The plaintiff said that the defendant was very entertaining during the dinner. He would make them laugh with his jokes, which were often sexual in nature, and he allowed them to drink beer.
The plaintiff said that they each had two beers each which helped them to relax. The defendant suggested they go to his home at Sans Souci to play pool. He also hinted about showing them a pornographic movie. The plaintiff said that this was a big deal for them because they had seen a few pornographic movies before. They talked amongst themselves about the prospect of watching it.
When they arrived at the defendant's home at about 8pm, he gave each of them another beer, and they played pool for about an hour. The defendant then said he would put the video for them upstairs when they were ready.
They went up to his bedroom and sat on the end of his bed while the video played. They all had their clothes on at that point.
The defendant suggested that they could masturbate if they wanted to. Mark said that he was not interested, and said he was going downstairs to play pool. After he left, the plaintiff and David felt comfortable enough to masturbate while the defendant watched. This took place for about ten minutes with the defendant watching them.
They stayed for about another hour and were then driven home to the plaintiff's house place at Padstow at about 10:30pm. The plaintiff said he could recall Mark being freaked out by the incident, but David seemed okay and just laughed about it. The plaintiff said he felt uncomfortable but felt completely under the defendant's control.
The plaintiff appeared to accept in cross-examination that this incident took place in September 1987. He had recently turned 16.
No evidence was given about what was described in particular (vii) of the amended statement of claim.

[10]

The plaintiff leaves the cinema

The plaintiff said he continued to work at the cinema for a few more months. He said he started to become a different person after the incidents. He felt dirty and disgusted with himself, and he carried shame. He said his level of confidence in himself and his identity began to crumble. He would retreat from social situations, and he become a loner, feeling he had nothing good to offer anyone as a friend or person.
He said he began to feel that he would only be valued if he was being taken advantage of. He said he developed addictions to alcohol, cigarettes, and pornography in his late teens, and would become obsessive about keeping control of his life and privacy, for fear of being vulnerable and exposed as the dirty, disgusting, pathetic boy that he felt he had become. He said he lost all sense of direction and any ambition to do anything with his life. He felt these incidents set a pattern for his life and had a negative impact on all his relationships with family and friends, as well as his career.
He began to lose interest in working at the cinema and in life in general. The defendant was still friendly towards him, although not as warm as he once was. The invitations from him to go out seemed to stop.
In December 1987 the plaintiff gave notice to leave the cinema.
The plaintiff said that following the assaults he became withdrawn. He wanted to be on his own, he lost friends and he was not social. He stayed away from people. He said he started smoking marijuana in 1987, around the time that he and his friends started a band called Mystic Knights. Initially he smoked marijuana once a week but then it became a daily habit for about a year and a half.
Subsequent to leaving the cinema, the plaintiff obtained a job at La Macina Pizzeria run by a Mr Bonica, a few doors down from the cinema. His duties included delivering pizzas as well as shop duties. Whilst working there, Mr Bonica offered the plaintiff the opportunity to watch pornography. The evidence does not disclose whether that occurred. Mr Bonica also attempted to abuse the plaintiff sexually in a motor vehicle. The plaintiff told him that he was not interested, and he resigned from that employment immediately.
In about 1989, the plaintiff said that he became aware that his parents were having relationship problems. His parents had an argument which the plaintiff witnessed. He then had to help his mother leave the house. He said that he was not aware of any problems between them prior to this argument. He believes that his parents remained living under the one roof until 1993.
The plaintiff said that prior to the assaults he was closer to his mother than to his father. He said he felt loved and protected by her. His father was a distant person. Although his father was around, he was not fully available emotionally. He did, however, engage in father/son activities with the plaintiff such as going to watch rugby league.
The plaintiff said he had a good relationship with his two younger sisters in his early years. However, following the assaults, he started to withdraw from his family. He said he was the older brother but he was not there for them.

[11]

The plaintiff's marriage and disclosures

In about August 1990, the plaintiff became reacquainted with a 16-year-old woman, Kerry Baird, whom he had known for about two years beforehand, because she attended the same high school as his sisters. A relationship developed between him and Kerry, and that led to them expecting their first child by January 1991. They were married in 1993.
The plaintiff disclosed to Kerry in about April 1991 the incident that occurred on the night the bridge was closed in August 1986. The plaintiff told her that incidents of a sexual nature occurred between the plaintiff and the defendant at his unit, but he did not go into any detail because of his feelings of embarrassment and shame.
The plaintiff had three children with Kerry, a daughter Elise, and two sons, Sam and Liam. The plaintiff disclosed to his three children at different times that he was the victim of a paedophile.
In 2005, the plaintiff and Kerry separated. The plaintiff said the separation occurred because he wanted to leave the relationship to pursue a relationship with somebody else. That other relationship lasted for three years.
From 2011 to 2014 the plaintiff lived with a woman called Wendy Jarrett. They had a mortgage together. The plaintiff said that Ms Jarrett had severe mental health issues. The plaintiff ended that relationship, but he said it took three years to finalise the separation of their financial commitments.
In about 1999 or 2000 the plaintiff told his mother about the sexual abuse and, subsequently, sometime in the early 2000s he told his father what had occurred. He said that he did not tell his parents sooner out of shame and fear. He was embarrassed and was afraid of being judged as being something other than a man.
The plaintiff said that in 2009, after he gave his first statement to the police, he started using alcohol to numb his feelings. He said he had a flood of emotions that he did not want to deal with, and he used alcohol to cope. He said when he was at his worst he was drinking half a bottle of scotch a night. There was also a time when he was drinking daily for a 12-month period.
The plaintiff was challenged about his statement that he started using alcohol in 2009 to numb his feelings and to cope, in the light of what he had earlier said at [62] above. In answer to that, the plaintiff said that his use of alcohol was "seasonal" (as he put it), that is, there were times of recovery and times of falling back into it.
In about 2016 the plaintiff met a woman called Lindsay Fitzgibbons and they began to develop a friendship. That turned into a relationship, and they were married in October 2018 when they commenced to live together.

[12]

Education and employment

The plaintiff sat for his Higher School Certificate in 1989 and scored 156 out of 500.
The following year, in about August 1990, he obtained employment with the Commonwealth Bank as a general clerk. He stayed working with the bank until 1998. During that time, he progressed from a level 1 clerk to a level 3 clerk. Over the years at the bank, the plaintiff said that people who he started with progressed through the clerk levels faster than him. Early in his time with the bank he was inconsistent with his attendance.
His supervisor was Mr Kevin Olsen. A statement from Mr Olsen was relied on by the plaintiff at the hearing. Mr Olsen said that the plaintiff was an average worker. He worked at a steady pace, doing work that was simplistic and repetitive in nature. He was not fast in doing his work. His accuracy with regard to balancing accounts was poor, and he often made what Mr Olsen considered to be silly or unnecessary mistakes. Mr Olsen said it often appeared that the plaintiff's mind was wandering and that he was not focused. He would often be sitting at his desk, although appearing to work. When the plaintiff was moved to a new section in the bank after about two years, his work did not improve, according to Mr Olsen.
Mr Olsen said that the plaintiff always appeared to be a loner, who was quiet and kept to himself. He appeared to be withdrawn. He never had issues with authority, and was compliant. The real issue for those above him was in keeping him motivated and focused on his work and not letting his mind wander. Mr Olsen did not observe the plaintiff to socialise with his peers.
Mr Olsen said that the plaintiff never progressed during the time that Mr Olsen was at the bank until 1996. He said that the plaintiff had no motivation to progress or be considered for progression.
Mr Olsen said that the plaintiff's career was different from the average person who worked for the bank. 50% of those who were employed as a clerk would leave the bank within one to two years, using the job simply as a stepping stone. For the other half who remained, they would normally be promoted within the bank within two years. Their duties became more complex, they were required to manage staff, and their remuneration became significantly greater than a clerk.
After the plaintiff left the bank in 1998, he obtained employment with Civic Video as a store manager. He remained in that employment for about 12 months. During that time he would manage about two or three people per shift. He left that position because the owner was closing the store down. He could have moved to another store with the same owner, but he then obtained a job as an office assistant at Express Fruit Service located in the Flemington Markets. His job included customer service, paying invoices, issuing receipts, and accounts payable and receivable.
In 2008, when the manager above him retired, the plaintiff moved into that position where he remained until October 2018 when he resigned.
He then obtained employment with Darcrou Recyling Pty Ltd as an operations manager. Darcrou was a company contracted by building companies to assist with site maintenance and recycling. That included the provision of skip bins and cleaning crews to clean up job sites. The plaintiff's job involved organising the logistics, scheduling jobs and managing staff. There were approximately 12 employees in the company.
In early April 2020, Dacrou went into voluntary liquidation, and the plaintiff ceased working for it. He was unemployed until the end of August 2020 when he obtained a part-time job as administration co-ordinator with the Restoration Centre. This is a church-based rehabilitation centre, mostly for ex-prisoners, and it provides addiction counselling. The job became full-time in September 2020. The plaintiff said that it is not highly paid job, and he cannot see a career path from it.

[14]

(a) Mark Proctor

There was evidence from Mark Proctor, who was one of the boys said by the plaintiff to have been involved in the fifth incident ([52]-[59]) above.
Mr Proctor said that he first met the plaintiff when they were in Year 5 together at Padstow Heights Public School. Their friendship continued when they were at Picnic Point High School with some other mutual friends including David Thompson, the other young man involved in the fifth incident. Mr Proctor said that he met the defendant because he (Mr Proctor) would often go to the Kogarah Mecca Cinema when the plaintiff was working there.
Mr Proctor said he remembered a day when the plaintiff, David Thompson and he went to the defendant's house for a swim. Mr Proctor's account of what happened that day is that at some point the plaintiff and the defendant went for a swim in the pool. Mr Proctor could not remember if David Thompson was swimming, but Mr Proctor was not.
At one point the plaintiff dived into the water. The defendant was already in the water, and he grabbed the plaintiff's genital area from the side and lifted him slightly out of the water. The defendant had hold of the plaintiff only for about a second before taking his hand away.
Mr Proctor said that the plaintiff swam to the other end of the pool, and when the plaintiff turned around and looked at Mr Proctor he had a really disgusted look on his face. As the plaintiff was standing there, the defendant said something like, "Darren got a pipi touch", or "Darren got a penis push".
Mr Proctor said that the plaintiff and the defendant continued to swim in the pool, and almost immediately after that incident, the defendant said to the plaintiff, "Does Darren want another pipi touch?", or "Does Darren want another penis push?".
Later in the afternoon, Mr Proctor said they went inside the house. The four of them were in the kitchen, and the defendant said words to the effect, "Let's take off our clothes and have a pull in front of a porno". Mr Proctor said, "No way, I'm not doing that. I'm not taking my clothes off".
David Thompson started to take his clothes off, but when Mr Proctor said he was not going to do it, the defendant said, "Oh come on, Dave's going in", to which Mr Proctor said, "No, it ain't gonna happen". At that point, David started to put his clothes back on.
Mr Proctor said that the defendant seemed disappointed, and his demeanour changed. They only stayed at the defendant's place for another 20 minutes.
At some point during the afternoon, the defendant said to Mr Proctor, "See if you can lie on my bed without tripping the alarm sensor". The defendant's bedroom had an alarm sensor just above the door, and the bed was in the middle of the room. Mr Proctor said that he took up the challenge and walked very slowly around the perimeter of the room until he was able to lie down on the defendant's bed without setting the alarm off. He said that he could not see what the other three were doing while he was doing that.
This account of that afternoon contrasts reasonably significantly with the plaintiff's account of what would appear to be the same occasion, because each of the plaintiff and Mr Proctor only gave an account of one occasion when they and David Thompson were at the defendant's house.
Although Mr Proctor was called in the plaintiff's case, it is not without significance that neither the plaintiff nor Mr Proctor was cross-examined by Mr Hall, the solicitor for the defendant, to challenge each of their accounts based on what the other had said.
I will return to this matter later in the judgment.

[15]

(b) Evidence from the plaintiff's family members

Statements from the plaintiff's ex-wife, Kerry Ramsay (nee Baird), his parents, his two sisters, his daughter and his cousin Scott Trevithick were tendered. None of these witnesses was cross-examined.
His parents, his sisters and Scott Trevithick all gave evidence of what the plaintiff had been like prior to the time he was about 15 years of age, and the changes that took place in the plaintiff from about that time. The evidence of his ex-wife and his daughter obviously post-dated his 15th birthday, but was largely consistent in describing the plaintiff at the times they knew him up to the present time. The evidence given by these witnesses may be summarised in the following way.
Prior to the age of 15, the plaintiff was a young boy who was a good son, a good brother and a good friend to his cousin. He had a lot of interests including movies, music and sport which he played. He had a good circle of friends and was part of the leadership group of those friends. He did well at school and appeared to be happy in life.
From about the age of 15 his family and his cousin noticed a lot of changes in the plaintiff. The best summary of the changes that were noticed in the plaintiff appears in the statement of Scott Trevithick as follows: 15. I remember that Darren was about 15 when I noticed a lot of changes in him. He became withdrawn, moody and sullen. He was quick to anger, he no longer had an adventurous streak and he became disinterested (sic) in everything other than movies and music. He was very different to the person I had previously known. 16. Darren's interactions with me, when he did speak to me, differed greatly to when he was between the ages of 10 to 14. He was very closed off and did not share what was on his mind. We had arguments and he would get upset and angry very easily: and often the things that he got upset and angry about were disproportionate. 17. Darren's change in behaviour significantly impacted his relationships with family and friends. He no longer interacted with me in the way he had. He stopped doing things outside and stopped activities such as performing music shows for family and friends. He only appeared to hang around those that he played music with. It was almost as if he had become a recluse. Whilst I would still hang around him when together with him, it appeared that he merely tolerated me rather than engaging with me like he once did. 18. I remember clearly that whilst Darren continued to have a passion for music, the type of music that he played and listened to dramatically changed. Rather than being interested in a diverse range of music that was on top of the charts, he started to listen to and play dark heavy metal music. I remember that he was in particular interested in Led Zeppelin and was obsessed with its lead guitarist, Jimmy Page. 19. Darren, in his later years of schooling spoke to me about having no interest in school. 20. I remember that by the time Darren was 17 he was very different to the person I once knew. He had become totally withdrawn and private. It was like he was a recluse. All of the sparkle and energy from him had gone. He would speak slowly and would move slowly. When with him, he would hardly speak to me and it would be hard to get 10 words out of him. He looked very different to how he once looked - he was very thin without muscle tone, his skin was pale and his hair was long and unkept.
The plaintiff's mother said that from about the age of 15 when he was in Year 9 he started to lose interest in school. He stopped applying himself, and his results dropped significantly. She would try and speak to him about his school performance and grades, but he was never prepared to listen to her or his father, and was always moody and angry. He also lost interest in, and stopped playing, sports at about this time. He stopped socialising with friends except for those in his band. He became sullen and angry towards everyone, and his appearance changed from someone who was fit looking and healthy to becoming thin and unhealthy.
Both his ex-wife and his daughter referred to him as being uninterested, unemotional and disconnected from life. They said he struggled with his emotions, not being able to express them. He had difficulty with personal conflict and how to deal with it.
There was no challenge to any of the evidence of these witnesses. The evidence was largely consistent amongst them, and it was consistent with the plaintiff's own evidence about his emotional history and personality. I accept the evidence of these witnesses.

[16]

The plaintiff also relied on a certificate of conviction pursuant to s 178 of the Evidence Act 1995 (NSW). The certificate disclosed the following convictions and sentences for the defendant: PARTICULARS OF ACCUSED Name of accused: Philip William Doyle Date of Birth: 2 January 1943 PARTICULARS OF OFFENCE(S) Count 6 Crimes Act 1900, Section 61E(1A) Sexual assault (Cat 4) indecent assault of person under authority On or about 5 August 1986, at Cronulla in the State of New South Wales, did assault Darren Lewis and at the time of such assault did commit an act of indecency on Darren Lewis, he being under the age of 16 years, namely 14 years, and under the authority of the said Philip William Doyle. Count 7 Crimes Act 1900, Section 61E(1A) Sexual assault (Cat 4) indecent assault of person under authority On or between 1 September 1986 and 30 September 1986, at Kurnell in the State of New South Wales, did assault Darren Lewis and at the time of such assault-did commit an act of indecency on Darren Lewis, he being under the age of 16 years, namely 15 years, and under the authority of the said Philip William Doyle. Count 8 Crimes Act 1900, Section 61E(1A) Sexual assault (Cat 4) indecent assault of person under authority On or between 1 February 1987 and 28 February 1978,, at Sans Souci in the State of New South Wales, did assault Darren Lewis and at the time of such assault did commit an act of indecency on Darren Lewis he being under the age of 16 years, namely 15 years, and under the authority of the said Philip William Doyle. Count 9 Crimes Act 1900, Section 61 E(1 A) Sexual assault (Cat 4) indecent assault of person under authority On or between 1 February 1987 and 28 February 1978,, at Sans Souci in the State of New South Wales, did assault Darren Lewis and at the time of such assault did commit an act of indecency on Darren Lewis he being under the age of 16 years, namely 15 years, and under the authority of the said Philip William Doyle. Count 10 Crimes Act 1900, Section 61E(1A) Sexual assault (Cat 4) indecent assault of person under authority On or between 1 March 1987 and 30 April 1987, at Sans Souci in the State of New South Wales did assault Darren Lewis and at the time of such assault did commit an act of indecency on Darren Lewis, he being under the age of 16 years, namely 15 years, and under the authority of the said Philip William Doyle. Count 11 Crimes Act 1900, Section 78Q(1) Solicit male under 18 to commit homosexual intercourse-TI On or between 1 March 1987 and 30 April, 1987, at Sans Souci in the State of New South Wales, did solicit Darren Lewis a male person under the age of 18 years, namely 15 years to commit an act of homosexual intercourse with or towards a male person. Date of Sentence: 24 August 2012 Name of sentencing Judge: Judge G. Woods Location of sentencing court: Downing Centre District Court PARTICULARS OF SENTENCE(S) Counts 6-10 On each count the offender is sentenced to imprisonment for 3 years to date from 4 July 2012 and to expire 3 July 2015. I set no non parole period because of the structure of the sentences overall. Count 11 The offender is sentenced to imprisonment for 1 year to date from 4 July 2012 and to expire 3 July 2013. I set no non parole period because of the structure of the sentences overall.

[18]

Assessment of the plaintiff's evidence

The plaintiff was cross-examined by Mr Trevor Hall on behalf of the defendant. The ways in which Mr Hall sought to impugn the plaintiff's credibility were, first, by suggesting that each of the incidents did not occur; secondly, by challenging the plaintiff's recollection of the layout of the defendant's Sans Souci house where most of the offending occurred; thirdly, by casting doubt on later incidents that took place between the plaintiff and the defendant on the basis of evidence given by the plaintiff about his reaction to earlier incidents; and, fourthly, by suggesting that the causes of emotional and psychological problems the plaintiff suffered from came from other incidents in the plaintiff's life.
I accept Mr Hall's submission that, given the serious nature of the allegations made where criminality is involved, it is appropriate to bear in mind s 140 of the Evidence Act 1995 (NSW) and statements by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; 110 ALR 449; [1992] HCA 66.
I consider that the plaintiff was an honest witness who gave his evidence in a matter-of-fact way without emotion or embellishment. Indeed, the lack of any emotion tended to provide support for the depressive disorder diagnosed by the psychiatrists.
Two other things provide some corroboration of the plaintiff's evidence. The first of these is the fact of the defendant's convictions. Proof of the convictions was admissible by virtue of s 178 of the Evidence Act, but the evidence of those convictions did not prove the facts that gave rise to the offences for which the defendant was convicted: s 91 Evidence Act.
However, there seems little doubt that the convictions in respect of counts 6, 7, 10 and 11 relate to the incidents described by the plaintiff in his evidence for particulars (i), (ii), (v) and (vi). In each case the offence in respect of which the defendant was convicted was constituted by the description given by the plaintiff in his evidence, and the dates and place of the offending accord with that evidence: see also Josifouski v Velovski [2013] NSWSC 1103 at [20]-[25].
Secondly, there is some corroboration for the incident being particular (vi) from the evidence of Mark Proctor. I have already noted the different accounts of what occurred on that day given by the plaintiff and Mr Proctor, but there is common ground between them in terms of what the defendant said to the three boys about watching pornography, removing their clothes and masturbating, and the evidence that Mr Proctor declined the defendant's offer.
Neither counsel for the plaintiff nor the solicitor for the defendant sought to deal in the evidence with the difference in recollection between the plaintiff and Mr Proctor about what occurred on that day. I thought that Mr Proctor was an honest witness but, despite that assessment, his evidence did not cause me to think that the plaintiff had not given honest and reliable evidence about that same occasion. The likelihood is that, with the passage of time, each has remembered a different aspect of the day, although with some commonality.
Nevertheless, the question remains whether, in the light of all the evidence and, indeed, the absence of evidence from David Thompson, whether the plaintiff has established that he was sexually assaulted by the defendant on that day in 1987 when Mr Proctor and Mr Thompson were present at the defendant's house. In my opinion, the plaintiff does not establish that he was sexually assaulted by the defendant on this occasion for the following reasons.
First, Mr Proctor, who was presumably called by the plaintiff to corroborate the plaintiff's evidence of the occasion, does not do so, except as to matters which do not constitute any form of assault. His evidence corroborating the plaintiff's only demonstrates (1) that he and David Thompson were present at the defendant's house; (2) that there was an offer by the defendant that they all watch a pornographic movie; and (3) that David Thompson was willing to remove his clothes for that purpose but that Mr Proctor was not.
Mr Proctor did not corroborate the plaintiff on the following matters: (1) dinner at the Chinese restaurant beforehand; (2) that they arrived at the defendant's house about 8.00pm; (3) that a pornographic movie was watched by anyone; (4) that David Thompson and the plaintiff engaged in masturbation while the defendant watched. More significantly, Mr Proctor gave evidence of matters including that the purpose of the visit to the defendant's house was to have a swim. They arrived at the house in the afternoon, and went swimming where a sexual incident involving the plaintiff and the defendant took place in the pool.
Secondly, although Mr Proctor gave evidence that he had not spoken to David Thompson in decades, and that the last time he knew Mr Thompson was in Canada, no evidence was led on the plaintiff's behalf to explain the absence of any evidence from Mr Thompson. He is a person who could have been expected to be called by the plaintiff, especially in the light of Mr Proctor's evidence. I am entitled to infer that his evidence would not have assisted the plaintiff.
Thirdly, even on the plaintiff's own account of the incident, there was no sexual assault by the defendant. Particular (vi), which must be the particular concerned with this incident, reads as follows: vi. Between April 1987 and September 1987, the Defendant provided the Plaintiff with alcohol and thereafter performed sexual assault upon him and/or required him to engage in sexual acts with the Defendant including encouraging the Plaintiff to masturbate the Defendant and/or to masturbate other boys under the age of 18 at the Defendant's home in Sans Souci. That is said to be a particular of the allegation in paragraph 7 of the Amended Statement of Claim: Between August 1986 and April 1987, the Defendant assaulted, sexually assaulted and/or abused the Plaintiff.
On the plaintiff's own account, the defendant may, by his words and actions on that day, have committed an offence, but it was not an offence involving a sexual assault. In fact, count 11 was one of soliciting an underage male person to commit sexual intercourse. On the account of both the plaintiff and Mr Proctor, the defendant solicited underage persons to commit indecent acts, although not sexual intercourse, but that does not constitute an assault.
Mr Hall submitted that if this last incident, as described by the plaintiff, did not occur, that not only cast doubt on the plaintiff's credibility generally, but also cast doubt on the plaintiff's self-assessment, that he became a different person after the incidents. This was because, Mr Hall submitted, it was only after the conclusion of that final incident that the plaintiff said that he started to become a different person. If that incident did not occur, Mr Hall submitted, then it should not be accepted that things changed for the plaintiff.
In my view, this is a far too simplistic way of looking at matters. It overlooks other evidence from the plaintiff about his feelings following earlier incidents. After the second incident at Kurnell where the defendant took photographs of the plaintiff and subsequently masturbated him, the plaintiff said in his first statement: 41. After this incident occurred, I started to become a little more quiet personality wise and a little bit uneasy about what I was doing with Doyle. I felt that he was controlling because of his authority although I didn't really see him as my boss like I did with Robert Tennant, I saw Doyle more as a kind of uncle. I started feeling weird when I thought about these incidents. I started to think of myself as a bit of a freak and that I was dirty. After the incident where the defendant persuaded the plaintiff to perform fellatio on him, the plaintiff said in his statement: 55. … I felt really sick about what had just happened. I didn't say anything to him after it, I just remember feeling repulsed.
If the plaintiff establishes that he was sexually assaulted on a number of occasions, but fails to establish an assault on a further occasion, that has a minimal bearing on whether or not it should be accepted that the plaintiff was affected by what was found to have occurred. Mr Hall's submission has the hallmarks of suggesting that unless the plaintiff established all of the assaults alleged, he somehow fails to reach a threshold to establish injury.
Another matter, not without some significance, is that the evidence from the plaintiff's family members, and from Scott Trevithick, demonstrates very clearly that something significant happened to the plaintiff at about the time he turned 15 years of age. The matters reported by those witnesses are not only consistent with the plaintiff's own evidence of how he came to feel and behave around that time, but are also consistent with what is well-known and understood in terms of behavioural changes in children and young people who are sexually abused.
I do not consider that the plaintiff's evidence was shown to be unreliable because of his inability to remember details of the layout of the defendant's house. The first time that the plaintiff was called upon to recall aspects of that house was in 2009 after he had made his first statement to the police about the allegations he made against the defendant. By 2009, the plaintiff had not been to the house at Sans Souci since 1987. Moreover, any further attempts to recall the details and layout of the house were only required from the plaintiff after the time the present proceedings were instituted in 2018.
Mr Hall put questions to the plaintiff on a number of occasions about the fact that the plaintiff, after feeling uncomfortable, embarrassed or shocked by what had occurred between him and the defendant on the first occasion, agreed to subsequent requests of the defendant to be alone with him and to do things. It was not quite clear what the purpose of asking such questions was, given that the plaintiff was not a consenting adult, and was an employee of the defendant. As the plaintiff said on one occasion, he felt uncomfortable, but at the same time, very pressured and obligated. It seemed to be implied from some of this questioning that the plaintiff had been a willing participant. It is difficult to see the relevance of that when the plaintiff was 15 years old and, as I have said, an employee of the defendant. I accept the plaintiff's evidence that he felt pressured and obligated.
The plaintiff gave evidence that he was confused about what was happening between him and the defendant. Judges are only too well aware that confusion is a common reaction to sexual experience with adults by children and adolescents. It is difficult to see how the fact that at the time, even if the plaintiff had been a willing participant, that could be a relevant matter whether in a criminal or a civil case. Although this is not a criminal case where consent by a person under 16 is simply not relevant, the notion that the defendant could rely on "consent" (by reason of the plaintiff's willing participation) in a civil case to mitigate his wrongdoing should be rejected. The reason a sexual interaction between an adult and a person under 16 is an assault (to ground the damages claim) is because the person under 16 is incapable of consenting to such a sexual interaction.
The defendant could have given evidence. The fact that he did not do so enables me to draw a Jones v Dunkel inference that any evidence he gave would not have assisted his case. That does not mean that I should automatically accept the plaintiff's evidence, but it makes it easier for me to do so.
Mr Hall asked, rhetorically, what could the defendant have said if he had given evidence, and what difference would his evidence have made; he would simply have denied the events alleged. Mr Hall pointed to denials in the defence filed. However, this is no answer to the defendant's failure to give evidence. For a start, and on that assumption, there would have been sworn evidence from the defendant which would need to be weighed against the evidence of the plaintiff. Further, the defendant's evidence would have been able to be tested in cross-examination, which may have assisted a consideration of the evidence. The evidence of the defendant may have cast new light on aspects of the plaintiff's evidence which may have worked in the defendant's favour. An example of such evidence from the defendant is to be found in a judgment in other proceedings taken against the defendant by another person: Miles v Doyle (No 2) [2021] NSWSC 1312 at [37] to [39].
These are all matters of speculation in the circumstances where the defendant did not give evidence. These matters do not alter the fact that, in the absence of evidence from the defendant, I infer that his evidence would not have assisted him. That does not mean the plaintiff's evidence is thereby accepted, but it is certainly easier to accept it in those circumstances.
I have given serious consideration to the matter of the outcome in relation to particular (vi) and to the conflicting evidence of the plaintiff and Mr Proctor. I do not consider that the failure of the plaintiff to establish that this incident occurred as he asserted means that he should not be believed about the remaining incidents. The significant aspect of that complaint is that on the plaintiff's own evidence no sexual assault occurred. That is sufficient to resolve that matter. On that basis there is no need to try to resolve the conflicting evidence between the plaintiff and Mr Proctor.
However, an entire acceptance of Mr Proctor's evidence would tend only to show that the defendant did sexually assault the plaintiff in the swimming pool, that the defendant had an unhealthy sexual interest in young men including the plaintiff, and that he was encouraging them to engage in activity that might or would lead to sexual interaction, which he at least could or would watch. In that way, even if I rejected the plaintiff's account of that day, it would detract very little from his other evidence of the defendant's sexual interest in him, and about the other sexual assaults.
Having regard to all of the evidence, I accept the plaintiff's evidence in relation to each of the assaults identified in particulars (i), (ii), (iii) and (v).

[19]

Causation

I am entirely satisfied that the sexual assaults were causative of the plaintiff's psychiatric diagnosis, at least to the extent that they substantially contributed to his condition. I accept that aspect of Dr Baker's evidence.
Apart from the sexual assaults, there have been a number of other significant incidents in the plaintiff's life including his parents' separation, his mother's family history of mental health issues, his son Liam's serious injury in 2009, and what appears to be a reasonably toxic relationship with Wendy Jarrett. The significant issue in the case is whether what the plaintiff has experienced in terms of mental health and emotional issues, the nature of his employment, and the history and nature of his relationships, is causally related only to the sexual assaults, or whether and to what extent the other significant issues in his life have been causally relevant to his positions.
The defendant argued, in particular reliance upon Dr Apler's evidence, that to the extent that the plaintiff has suffered mental harm which has played out in terms of his employment, his relationships, his sense of self-worth and in the mental health issues that he claims, the other serious incidents in the plaintiff's life must be seen as causative also, and that the sexual assaults were not the sole cause.
In Watts v Rake (1960) 108 CLR 158 the High Court discussed the issue of the onus of proof in a personal injuries case. In that matter, Dixon CJ identified (at 160) three arguments of the defendant in relation to causation. The first was that the plaintiff was said to be predisposed to many of the conditions which had rapidly developed as a consequence of the accident; secondly, that part of his present condition was traceable to causes other than the accident; and thirdly, that had there been no accident the plaintiff would eventually and prematurely have been incapacitated by the seeds of the disability within him.
Having dealt with the first of those matters, Dixon CJ went on to say: As to the second and third of these answers, there is undoubtedly a presumptio hominis in the plaintiff's favour which any tribunal of fact should insist that the defendant should overcome. If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred.
Justice Menzies also said (at 164): [A]lthough it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health. Such a case is not unlike that of a defendant in a defamation action proving in reduction of damages that the plaintiff had a bad reputation. It should also be observed that a negligent defendant must take his victim as he finds him and pay damages accordingly. The fact that the person injured was peculiarly susceptible to ensuing complications that would not in a normal person have followed from the injuries received, or that the person injured already had a disability which made the injury the more disabling - eg, the loss of an only eye - does not mean that damages are not to be assessed according to the circumstances of the particular case.
In Purkess v Crittenden (1965) 114 CLR 164, the joint judgment of Barwick CJ, and Kitto and Taylor JJ said of Watts v Rake (at 168): We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant.
In my opinion, there can be little doubt at all that the principal cause of injury to the plaintiff was the sexual assaults perpetrated upon him by the defendant. But for one thing, all of the other matters put forward on behalf of the defendant as a cause of the plaintiff's injury post-dated the sexual assaults. The evidence of the plaintiff and of his extended family all point to a significant change in the plaintiff at about the age of 15. These changes related to his self-perception, the observation of others concerning his emotions and behaviour, and the evidence of the decline in his school performance. There is no evidence that his consumption of alcohol and cannabis commenced at any time prior to the sexual assaults. The problems with his parents' marriage, or at least his knowledge of those problems, post-dated the sexual assaults by at least 15 months.
The one reservation mentioned earlier concerns the alcoholism and bipolar disorder in the plaintiff's mother's family. The evidence of the psychiatrists tended to establish that a persistent depressive disorder could have emerged in the plaintiff in his middle to late adolescence as a result of that family history, and regardless of the sexual assaults. I accept that that is a possibility, but on the balance of probabilities I am entirely satisfied that the principal cause of the plaintiff's depressive disorder and its consequences was caused by the sexual assaults by the defendant on the plaintiff. The defendant does not, in accordance with Watts v Rake and Purkess v Crittenden establish that it was those family mental health issues which were responsible for the significant changes in the plaintiff, ultimately leading to his injuries.
I agree with Dr Baker's opinion that while the other matters may have led to an episode of depressive illness, they would not have led to the plaintiff's persistent depressive disorder. That was caused by the sexual assaults. However, I accept that the breakup of his parents' marriage, the brain injury to his son, and particularly the relationship with Wendy Jarrett are contributing factors to his ongoing mental health problems.
Although many of the plaintiff's symptoms had emerged from the age of about 15 onwards and throughout his marriage to Kerry, the most significant other event, in terms of the plaintiff's mental health issues, seems to me to be the relationship that he had with Wendy Jarrett. It was only after problems emerged in that relationship that he first started counselling, that he first saw a psychiatrist, and that he first went on antidepressant medication for a period of time. I accept also that a significant matter occurred from shortly before his relationship with Wendy Jarrett commenced, and that was when the plaintiff was required to relive the sexual assaults by his disclosure to the police, the provision of statements to the police and the giving of evidence in the two trials of the defendant in 2011 and 2012.
Nevertheless, both the contemporaneous counselling notes and what the plaintiff told Dr Apler when he first saw him demonstrate fairly clearly that it was the very bad relationship with Ms Jarrett that preoccupied the plaintiff over the years that that relationship lasted and beyond.
The impact of the relationship was made clear in things said by the plaintiff to Dr Apler including the following: I get some anxiety, but less than depression. There is pressure at work, especially in summer, when it's the peak season. Being with Wendy before she was medicated also made me anxious. She was unpredictable with alcohol and mood swings. I haven't had much anxiety since I've been on Cymbalta, perhaps once a week. … Before I was on Cymbalta I had a constant feeling in my gut with anxiety. I would get depressed and anxious. I would worry about my night with Wendy or about her plans to do something around the house. She was manic, high energy, and I am low energy. … I have been discussing my relationship with Wendy in counselling. It's hard to see the light at the end of the tunnel about the relationship. The counsellor suggested antidepressants in April and I started Cymbalta. The dose was increased from 30 to 60mg over the last two months and it has helped my mood. … Before that I did not want to talk to anyone. I avoided church and friends, sporadically, for the last five years. I was with another church in early 2000s. I would hibernate if feeling depressed, and this has continued since I've been with Wendy.
I agree, however, with what Dr Baker said in the joint report of the psychiatrists, that the plaintiff was more vulnerable as a result of the sexual assaults, and that his ability to deal with the other crises in his life was thereby impaired.

[20]

Damages

The plaintiff seeks both compensatory and aggravated damages for sexual assault. Sexual assault is an intentional tort. As mentioned earlier, by reason of s 3B(1)(a) of the Civil Liability Act, the provisions of that Act do not apply with certain irrelevant exceptions. Damages are, therefore, assessed under the common law without the restrictions and limitations set out in the Civil Liability Act.
The course of the plaintiff's life has been set out above at [61]-[96] and [110]-[115].
Although the plaintiff did not seek any professional assistance in the form of counselling or treatment until May 2013 when he first saw the psychologist Ms Mala Sharma, I consider that the plaintiff suffered mental harm from the defendant's assaults from a time even before he ceased working at the cinema.
It seems fairly clear that the plaintiff internalised his feelings of guilt and shame for many years, but that he suffered from a depressed and anxious mood with low self esteem from the time of the sexual assaults. The fact that he had suicidal thoughts at the age of 20 when he saw the bank's psychologist is not without significance. Even if some other matters may by that time have been independent causes (for example, his parents' marital problems), the need to see a psychologist about those thoughts, or his identity confusion is consistent with what friends and family reported about the changes they observed in him.
Apart from seeing the bank's psychologist, the plaintiff's wife organised for him to attend a men's group so that he could improve his social skills. However, the plaintiff was fearful of sharing with that group the fact that he had been sexually assaulted, in case he found that he was treated differently after they became aware of the abuse and how it had affected him. He experienced persistent shame and guilt with outbursts of anger whilst in the group. He became avoidant of his children's school activities and functions, and preferred isolation in a shed at his house. He sought relationship counselling in an attempt, unsuccessfully, to salvage his marriage with Kerry.
Dr Apler said in his report of 11 July 2017 that the plaintiff's feelings of being unmotivated, avoiding engaging with people, feeling chronically depressed, anxious, hopeless and angry all amounted to a dysthymic disorder in psychiatric terms. Although Dr Apler seemingly accepted that the plaintiff suffered from a number of these symptoms from the time of the sexual abuse, he said that several factors contributed to the development of the symptoms. He identified such matters as the plaintiff's parents' separation, his use of alcohol and cannabis as a teenager, the severe injury to his son, and his marital problems as those factors.
Whilst those matters are likely to have had some aggravating effect on the plaintiff's condition, it is clear, as I have said, that his symptoms predated all of those other factors. Dr Apler said that the fact that the plaintiff did not dwell on the assaults for several decades before becoming aware of the proceedings against the defendant suggests that the relevance of those assaults to the psychiatric condition he was suffering diminished with the passage of time. In my opinion, there is no basis for the conclusion that the plaintiff did not dwell on those incidents for several decades.
The evidence suggests that a further significant event in the plaintiff's life was his awareness that the defendant had been arrested and charged with sexual assaults on other children, and with the plaintiff's decision to come forward and provide information to the police about what had happened to him. That led to the plaintiff providing statements to the police and to the plaintiff's giving evidence in the defendant's trials in 2011 and 2012.
It was about at that time that the plaintiff developed severe alcohol dependence leading to Dr Baker's diagnosis of an alcohol use disorder, a diagnosis agreed by Dr Apler. It was in the year following the second trial that the plaintiff first saw the psychologist Ms Sharma. It was certainly clear from the notes made by Ms Sharma in her initial assessment of the plaintiff on 23 May 2013 that the plaintiff related a number of problems which he had to the sexual assaults by the defendant. The plaintiff's self-report to Ms Sharma that the family considered him to be cold and emotionless was consistent with how the plaintiff appeared when he gave his evidence in these proceedings. I do not intend to be critical of the plaintiff in that regard. However, the plaintiff's matter of fact way of recalling matters, and the lack of any emotion or histrionics when giving his evidence, suggested to me a person who had suppressed their emotions over a long period of time in order to cope with what had happened to him. They also suggested a person who was significantly depressed, as I said earlier.
Many victims of childhood sexual assault become addicted to drugs and/or alcohol, have an inability to maintain employment, and often turn to crime as a concomitant of their drug/alcohol addiction. Whilst the plaintiff certainly suffered from an alcohol use disorder, and for a reasonable period of time was addicted to cannabis, he nevertheless was able to maintain almost consistent employment from the time he worked at the cinema with the defendant. I accept that the positions the plaintiff has held have not been high-powered or high-paying jobs, but he has managed to perform sufficiently well in them to keep his employment.
The plaintiff also managed a reasonable relationship and marriage with Kerry Baird for about 15 years to which three children were born. He has also been in what appears to be a successful relationship since 2016. That is not to say, however, that his employment and those two relationships, not to mention the further relationship with Wendy Jarrett, were unaffected by the way the plaintiff had dealt with the sexual assaults since the age of 15 or 16.
However, it is apparent from reading the notes of the counsellor, Mr Bob Rogan, from October 2015 to December 2017 that the distress exhibited by the plaintiff was not only as a result of Ms Jarrett and her behaviour, but also from the plaintiff's inability to deal with emotions and the relationship, as a result of his personality traits which by that stage had become entrenched, but which were related back to the big changes in him in his late teenage years, identified not only by him but by the other witnesses. This entirely supports Dr Baker's view that by reason of the sexual assaults the plaintiff was vulnerable to the other traumatic incidents which occurred at various times subsequent to those assaults. In that way, I consider these other incidents are entirely subsidiary when issues of causation are being considered.
The evidence demonstrates that the plaintiff has been badly affected as a result of these assaults from the age of 15 to the present. Subject to the success of any treatment he undergoes, he is likely to experience the effects of them for the remainder of his life. All that can reasonably be expected is some improvement. He has suffered a life-long injury, principally from the wrongdoing of the defendant.
I assess general damages in the sum of $400,000.00.

[21]

Economic loss

A report from was prepared by Mark Thompson of Vincents Chartered Accountants dated 8 November 2018. That report provided an opinion concerning the plaintiff's economic loss on the assumption that: Had the matters that form the basis of this action not occurred, Mr Lewis would have pursued a career with the Commonwealth Bank of Australia (or a similar banking institution) from 01 January 1990 until retirement at age 67 years. Mr Thompson's assessment commenced on 1 July 1994 because he considered that the plaintiff derived a pay level consistent with those detailed within CBA agreements between 30 June 1991 and 30 June 1994, with the result that the plaintiff suffered no financial loss in those financial years.
Mr Thompson estimated past and future economic loss on two scenarios. Scenario one was where the plaintiff's notional earnings progressed on a generally straight line basis to $130,000 per year before tax, and scenario two involved him progressing on a generally straight line basis to $150,000 per year before tax.
Under scenario one his past economic loss to 30 November 2018 was $299,693.00. His future economic loss from 1 December 2018 to 22 August 2038 (when the plaintiff would turn 67) was $225,204.00. The respective figures for scenario two were $431,287.00 and $403,590.00. The future losses were discounted at 3%.
The loss of superannuation entitlements was $190,750.00 under scenario one and $294,062.00 under scenario two. The total loss including interest on past economic loss and the loss of superannuation entitlements was $933,469.00 under scenario one and $1,419,704.00 under scenario two. Neither amount made allowances for vicissitudes.
The difficulty with the evidence of Mr Thompson is that nowhere does the plaintiff give evidence that it was his intention to carve out a career in the CBA or any bank where he would stay until retirement at 67. It is not without significance that Mr Olsen, the plaintiff's supervisor at the bank, said that over 50% of those employed as a clerk in the bank would leave the bank within 12-24 months, and that they used the job simply as a stepping stone to something else.
It may be accepted that the plaintiff underperformed when he worked at the bank. It may also be accepted that the employment that he has had since that time has not been, as I have said, in highly paid jobs.
When speaking of the plaintiff prior to the changes she noticed in him at about the age of 15, his mother said that his test scores were always high and that he did well against his peers at school. That evidence was neither objected to nor challenged.
On the limited evidence available I can accept that it is likely that the plaintiff would have been engaged in more highly paid employment than he has been. It is not possible to say what the nature of the employment might have been or how much he would have been paid in any such employment.
In the circumstances, I consider that it is appropriate he should be awarded a buffer for each of past and future employment. For reasons given by Mr Thompson, the loss of earnings commenced 1 July 1994. He claims a loss for the future to age 67, that is, August 2038. The plaintiff correctly accepts that the matter should be approached as a loss of opportunity for him to have earned at a higher rate than he has. That approach requires a discount in accordance with Malec v Hutton (1990) 169 CLR 638.
For the past, I would award the sum of $250,000.00 and for the future $200,000.00. The plaintiff is entitled to interest on the past figure, appropriately discounted, and an amount for loss of superannuation benefits on the basis of those figures. He is also entitled to interest on the amounts for past loss of superannuation.

[23]

Future out of pocket expenses

The plaintiff claims for the following attendances: (a) A psychiatrist: Once every six weeks for 12 months at a cost of $350.00 per consultation, and thereafter once every six months for the balance of life expectancy (33 years then remaining); (b) A psychologist: Once every two weeks for 12 months at a cost of $250.00 per consultation, and thereafter once every two months for the balance of life expectancy; (c) A general practitioner for referrals and other ancillary needs - four consultations per year for life expectancy (currently 34 years); (d) Antidepressant medication: At a cost of $1,200.00 per annum for current life expectancy of 34 years.
The significant difference between the psychiatrists was that Dr Baker considered that outpatient treatment to date had been unable to place the plaintiff's persistent depressive disorder into full remission. Dr Baker said that the plaintiff was entering an age of risk for male suicide and depression and that would add to the need for inpatient treatment. Such inpatient treatment for a 21 day period was likely to cost about $30,000.00.
In his oral evidence, Dr Apler considered that the plaintiff might derive significant benefit from intensive treatment over a 12 month period involving medication as well as psychiatric consultations. He said the position would need to be reviewed at the end of 12 months to see if maintenance treatment would then be required beyond that time.
I found Dr Baker's evidence about the likely treatment the plaintiff would require to be unsatisfactory. Dr Baker became argumentative when reasonable propositions were put to him by Mr Hall. That may well be why the plaintiff and his legal advisors have put forward what appears to be a middle course, involving reasonably frequent psychiatric and psychological treatment during the first 12 months, with a less frequent arrangement in the years to follow. The frequency of psychiatric and psychological consultations during the first year and the cost of those consultations was put forward by Dr Apler in the joint report. The area of disagreement concerns the years remaining after the first 12 months. Dr Apler said that he cannot say at the present time what the likelihood is for the need to continue the treatment, or even if some more intensive treatment might be needed.
In coming to a view about whether some sort of maintenance program needs to be put in place for the remainder of the plaintiff's life, I take into account that the plaintiff did not have any significant counselling until 2013 when he first saw Dr Sharma, that the focus of his counselling with Mr Rogan was on the toxic relationship he had with Wendy Jarrett, and that the only medication he has had was an antidepressant for a period of no more than two years between 2017 and 2019. I also take account of the fact that the plaintiff has scarcely been unemployed throughout his adult life, whilst accepting that the employment that he has had have likely not stretched his potential.
I do not consider that it can be found on the balance of probabilities that the plaintiff will need ongoing psychiatric and psychological treatment for the remainder of his life. However, an allowance should be made by way of a cushion for the chance that such treatment will be needed. Accordingly, I award the following amounts: (a) Six weekly consultations with the psychiatrist for 12 months (3% multiplier = 51, at a cost of $350.00 per consultation = $58.33 per week. Total $2,974.83) (b) Fortnightly attendance on a psychologist for 12 months at a cost of $250.00 per consultation ($125.00 per week. Total $6,375.00). (c) Antidepressant medication at a cost of $1,200.00 per annum. On the basis of the evidence that the plaintiff took anti-depressant medication for less than a two year period, I do not consider that there is a high chance he will continue to take it beyond the first 12 months. Taking that into account and the possibility that such treatment will not be necessary over the remainder of the plaintiff's life, I allow an amount of $3000.00. (d) For attendances upon a general practitioner for referrals and ancillary needs in relation to his mental health issues, I allow a cushion of $3,000.00. (e) I allow a cushion for the period after 12 months in relation to psychiatric and psychological consultations of $15,000.00.

Lewis v Doyle

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (26 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)

Cited By (5)