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[2007] NSWDC 196
General information, not legal advice.
District Court of NSW
2007-08-01
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Xavier McCrae 4. Xavier McCrae was born on 1 September 1985 and is now 22. Until recently his name was Tim Ferstat. As a boy he had had an unremarkable upbringing, and was a good student, active in sports and the local church. He lived in the Hurstville area with his mother and father, an older half-brother, and a grandmother. At age 10 he started a paper run, which he continued with for some 3 years. From about age 12, towards the end of primary school in 1997, he started to come into conflict with his family, involving 'verbal aggression', fighting, and arguing between him and his parents. In particular, it seems, there were disagreements about him playing sport. What precipitated this disruption in the family home is not entirely clear, but when the family tensions deepened, a therapist was consulted, Mr Chris Poulin, at Prince of Wales Hospital, to assist the family in working through the problems. No evidence was led from Mr Poulin or the parents and the precise nature and cause of the family conflict is unknown. The evidence suggests, however, that Xavier was a child who craved attention and his parents were reportedly 'very busy' and not interested in him, or 'his brain'. There was also evidence of problems surrounding his mother's mental state, and of alcohol abuse, and his father's focus on protecting her to the exclusion of Xavier. The impact of this is on him is unclear. What is evident, however, is that from the beginning of his early adolescence, Xavier McCrae was an emotionally vulnerable and confused young man, craving affection.
Some months later Potter went to the Kyle Bay Scout Hall and gave a firearms demonstration, involving the display of pistols, rifles and air guns. On that night Xavier was introduced to Potter, and had a conversation with him. He expressed his interest in the firearms. Potter suggested he should come along to the shooting range at his house and join his Venturer group. Xavier was 13; nearing the age he was eligible to become a Venturer. Potter told Mr McCrae to contact him on his home telephone, and he subsequently rang Potter and arranged to meet him at his house in Narwee.
The first meeting with Potter consisted of Xavier being driven to Potter's house. From there Potter took him to the Pegasus Pistol Club in Condell Park, where he participated in some air pistol air shooting, which he enjoyed. He fell under Potter's spell, and quickly became emotionally dependent on him. As soon as he was old enough he joined the Narwee Venturers, and became a regular member of that troop.
I do not propose to detail the 'grooming' of Xavier by Potter and the ensuing three years of sexual abuse that followed, and will only summarise what occurred and draw attention to those features that seem to me relevant to the issues I am required to determine. The medical evidence, particularly that of Dr Roberts, describes how emotionally vulnerable adolescent boys are susceptible to the advances of paedophiles, who have a unique capacity to identify, select and then exploit victims. Potter was a known paedophile, aged from 51 to 54 during the period of abuse.
Potter encouraged Xavier and other young scouts to come to his home. Pornographic videos were shown, including homosexual videos. Talk about sex was encouraged. Alcohol was provided. Genital touching followed then masturbation, mutual masturbation, oral sex and ultimately anal sex. This abuse continued through to 2002. Masturbation occurred regularly, and oral sex occurred on multiple occasions. According to the evidence, the anal sex was limited to two occasions. More significantly, however, Xavier often stayed at Potter's house, sleeping with him in the same bed. He was encouraged to lie to his parents as to his whereabouts, and became dependent on him for emotional support and affection.
Worse was to follow, because Potter was not just a paedophile, but also a hebophile.
A hebophile is defined as an adult who has a strong sexual, emotional and spiritual attraction and/or preference for adolescents, (post-pubescent children) but is not attracted to pre-pubescent children. The age of attraction varies between 11-17 years old. At this age the child starts to make the change from being a child into being a young man. Hebophiles will often sexually abuse dozens of children over time. They find ways to get close to post-pubescent children, such as having parties, offering rides home, supplying them with drugs and alcohol. Hebophiles are very clever at locating troubled or withdrawn post-pubescent children. The most common technique used by hebophiles to obtain sex from post-pubescent children is to befriend them, offer them a place to hang out, invite them to parties, bootleg and supply drugs. The sexual activity engaged in by the hebophile varies from admiring the post-pubescent child, to exposing themselves, to engaging in masturbation, to caressing and fondling. Other sexual activities include performing oral stimulation, or penetrating the mouth, vagina or anus with fingers, foreign objects, or penis. Hebophiles frequently rationalize and make excuses for their behavior. They usually have limited relations with adult peers, and relate better with post-pubescent children. If the post-pubescent child is troubled, the hebophile will often comfort and support them. The post-pubescent child will eventually develop feelings for the hebophile, despite the fact they are being sexually abused. Hebophiles are very good in the manipulation of post-pubescent children. Often, the hebophile is courteous, friendly and respectful to the post-pubescent child for the purpose of gaining their trust. However, when the victim gets older (into adulthood), the fond feelings they had for the hebophile usually go, resulting in the victim being left with the effects of the abuse.
About 12 months after their first meeting, Potter began encouraging Xavier to identify and encourage other, younger boys into Potter's circle. To his eternal shame, Xavier McCrae did introduce other boys to Potter, who Potter also subsequently groomed and abused homosexually.
As the relationship with Potter developed and continued, the other aspects of Xavier McCrae's life began to deteriorate. The family tensions at home persisted and his performance at school began to fall away. He began self-mutilating, by lacerating his arms. Nevertheless, he went on to complete Years 8, 9, 10 and 11. He was also still consulting the family therapist, Mr Chris Poulin, on a regular basis, but he was never able to bring himself to disclose what was happening.
Late in 2002, when Mr McCrae turned 16 in Year 11, Potter began to lose interest in him. The visits became less regular, and Potter was increasingly talking about and looking for other boys. Xavier became aware of Potter's waning interest in him, and increasingly realized that he was being abused and betrayed. He felt like he was only being used for sex, and determined to end the relationship. He had words with Potter and it was over. He was devastated.
Mr McCrae then went into a very deep depression and became acutely 'self-loathing'. He had suicidal thoughts and was harming himself by lacerating his arms. His mental state seriously deteriorated. Things at home were becoming unbearable. He felt there was no one he could tell. He was unable tell Mr Poulin, his therapist. He skirted around the issue with the school counsellor. The only person he felt he could trust was the mother of a school friend, Dr Brenda McPhee, in whom he finally confided, in about February 2003.
Soon afterwards his mother discovered him cutting his biceps with a knife. She called an ambulance, but he ran off. When he returned home later, the police were waiting for him and he was taken to the 'psych ward' at Sutherland Hospital. From there he was admitted to the Northside Clinic on 10 March 2003 for psychiatric care. He was discharged the following day into the care of Dr McPhee and his GP, Dr Byrne.
Mr McCrae was still unable to tell anyone other than Dr McPhee what had happened, until finally he was persuaded to see a counsellor at the sexual assault unit at the Royal Prince Alfred Hospital, Ms Annie Crowe. He disclosed to her the events that had occurred with Potter. He then told his parents. Unfortunately he felt that their response and level of understanding was unsympathetic, and he felt it was an impossible situation. Soon after that he left home and went to live with Dr McPhee. Then, on 1 April 2003, he went to the Kogarah Police Station with Dr McPhee and Ms Crowe, and made a statement. He also felt unable to continue at school and left. Thus he did not complete the Higher School Certificate.
Events subsequent to the abuse 21. Dr Sara Williams became Mr McCrae's treating psychiatrist. She was primarily responsible for his treatment for about 18 months, until she retired from practice. She passed him over to a colleague, Dr Ruth Foster, who has been his treating psychiatrist ever since. There have been various other consultations, including specialist consultations for treatment, such as with Dr Gordon Parker, and consultations with other experts, such as the counsellor from the sexual assault unit at the Royal Prince Alfred Hospital and the family therapist, Mr Poulin, at Prince of Wales Hospital. And, of course, there have been numerous medico-legal assessments.
In the first year of rehabilitation, Mr McCrae saw Dr Williams regularly, initially 2 or 3 times a week, plus phone contact in between appointments, and then less frequently. His alienation from his family was now complete, and he was continuing to self-mutilate. He was also dealing with the police and their investigation of Potter. Dr Williams gave an initial diagnosis of "Major Depressive Disorder", complicated by if not precipitated by the sexual abuse. Treatment consisted of medication and therapy. She referred Mr McCrae to Professor Gordon Parker, a specialist psychiatrist, on four occasions. It seems clear that Mr McCrae didn't much care for Dr Parker, and found him arrogant. Dr Parker in fact diagnosed him as having a bi-polar disorder, and advised a change in his medication.
Dr Ruth Foster gradually took over as the treating psychiatrist from Dr Williams, after her retirement, in the second half of 2004. It took some time for her to establish the confidence and trust of Mr McCrae. Dr Foster has been monitoring him and providing regular psychotherapy ever since. At first she saw him every two to three weeks, then fortnightly. Her diagnosis was of a chronic dysthymic disorder. More recently the visits have increased to weekly as the sessions began to focus on some more detailed examination of the abuse.
I pause here to note Dr Parker believes Mr McCrae has been 'over-therapised'. This is an issue I need to determine, particularly in the context of future needs.
It is to be observed that there has been a range of diagnoses for Mr McCrae's psychological condition. Some of these were offered during a period in which he was abusing marijuana, and it is notoriously difficult to make an accurate diagnosis in those circumstances. The label for his psychological condition is, to my mind, less important than the manifestation of its symptoms and its adverse effect on his life, as to which there is abundant evidence. Any early adolescent depression was subsumed by the trauma of repeated sexual assaults on him during formative years. Any familial predisposition to psychological disorder was well and truly enveloped and overwhelmed by the stressors arising from the sexual abuse. It is sufficient to say that the evidence overwhelmingly establishes that what was perhaps a minor depressive condition in early adolescence, from which he would in all likelihood have emerged, became a serious and persisting psychological disorder with pervasive and lasting consequences.
The result has been what doctors have described as a 'chaotic adolescence', a need for medication and therapy, and an uncertain future.
Since he dropped out of school in Year 12, Mr McCrae's life has been disordered. He has not settled into any pattern, and has drifted along without any clear objective as to the future. He has involved himself in a range of activities and tinkered with several interests and pursuits. These have included starting several courses, in psychology, small business, pathology and doing a drug and alcohol course. He has tried various forms of work, such as employment in a video store, and for a pathology company, counselling and giving talks at the Wayside Chapel. Initially he lived with Dr McPhee, but has also tried living in various other diverse locations including northern NSW, the Illawarra and the Blue Mountains. He even tried to move back with his parents for a time. More recently he has begun to focus on a work-life associated with his interest in the outdoors, such as a job as a park ranger.
He has, unfortunately, also involved himself from time to time since the sexual abuse in drug and alcohol abuse, with a history of cannabis use and binge drinking.
Mr McCrae has been in a number of relationships, all homosexual. The first of these relationships, with another boy named Andrew, began during the period of abuse by Potter. Then there were relationships with other young men, Gus, John and Allan. In 2004 he entered into a long relationship with Jason, with whom he moved to the Illawarra region. This ended in March 2005. Soon after he entered into a new relationship with Miles, which was ongoing at the time of this trial.
The period between April and December 2005 was particularly difficult for him, as it involved Potter's trial, at which he was to give evidence, and which was adjourned several times, and the sentencing of Potter, for which Mr McCrae had to prepare a Victim's Impact Statement.
There are, however, signs that he is emerging from the turmoil and beginning to fashion a future. One clear indicator of this was his changing his name during 2004. He described the motivation for this as the desire for a fresh start and a new beginning. There are other signs, including the desire to find work in the future (T 111.25-47), an improving ability to concentrate, and with the passage of time and removal of the stressors relating to Potter, including this case, a greater maturity.
Credit 32. Something needs to be said about Mr McCrae's credit, as there was something of an attack on his motivation. There were elements of exaggeration in his evidence, but he wouldn't be the first plaintiff who has sought to maximise a court's sympathy. I was not convinced, for example, that he ever had a heterosexual orientation and his evidence about a girlfriend in primary school was unconvincing. On the other hand, his evidence about the abuse at the hands of Potter was significantly understated. The suggestion that he was 'faking bad' does not accord with the impression I formed of him during his long period in the witness box. My observation of him was that he gave his evidence with a degree of youthful ingenuousness and disarming forthrightness. The following observation proffered by Dr Foster struck a chord with me:
"Mr McCrae's easy social manner and considerable social skills are demonstrated by the comments of teachers and his Headmaster during a period when it was subsequently known that he was being abused. To suggest that there is or was no distress because it wasn't observable is naïve. The easy manner is part of Mr McCrae's "shell" or evidence of his "false self". It is not evidence of an internal ease or comfortableness with himself."
Damages 36. I turn to consider the damages to which Mr McCrae is entitled. He seeks damages for past out-of-pocket expenses, for future medical and other out-of-pocket expenses, for past economic loss, for a diminution in his future earning capacity, and for non-economic loss. He also seeks an award of exemplary damages against Potter.
What is the extent and likely duration of Mr McCrae's psychological condition? 39. Counsel for the Association submitted that there was no objective evidence to support any ongoing disability on the part of Mr McCrae, all the evidence being of a subjective nature, and the medical evidence supporting a psychological diagnosis hugely dependent on acceptance of the symptomatology claimed. In that regard, the evidence is of him 'faking bad'. The worst of his problems is in the past and all he has is 'a bit of baggage' to carry through life. So far as his capacity to earn is concerned, he has 'come a long way' and is demonstrating an ability to cope well and move forward. Any belief that he remains incapacitated is perpetrated by unnecessary ongoing medical treatment. So far as future economic loss is concerned, it was submitted that a buffer of $55,800.00, the equivalent of the past economic loss, would be sufficient to compensate him. Any award for future treatment should be modest. As to non-economic loss, it was said this is not 'the most grisly case imaginable', and Mr McCrae can read, write, work on a computer, has relationships, travels, so that he has a wide range of activities available to provide him with a positive quality of life.
Having regard to the objective psychiatric opinion, especially from those who have been treating this young man, to my mind the Association's position is unfittingly dismissive.
The Association relies primarily on three medico-legal experts: Dr Allan White, a consultant psychiatrist; Dr Wendy Roberts, a clinical psychologist; and Mr Peter Defina, a consultant clinical psychologist, who provides vocational and clinical assessments for medico-legal purposes. Each of them provided detailed reports setting out their opinions. I summarise below their views on Mr McCrae, so far as they are relevant to the issues I am required to determine.
Dr White's opinion is that there is no evidence Mr McCrae is currently suffering any disabling or permanent mental illness. Based on his two interviews, he concluded that there was no evidence of cognitive impairment or other manifestations of serious mental illness. His presentation suggested no more than a discomforting rather than a disabling mental illness. Mr McCrae's adolescent turmoil was a consequence of a variety of events including the dysfunctional sexual relationship with Potter, substance abuse, relationship difficulties with his family, and difficulties at school. He is overcoming these difficulties with personal growth, the passage of time, new relationships, and new learning. In the absence of genetic vulnerability, life events cannot cause permanent mental illness. Dysfunctional and predatory sexual relationships can affect trust, but new learning and good relationships can overcome these difficulties.
A clue to Dr White's view is to be found in this comment:
"I have no doubt from the history and from Mr McCrae's attitudes that he is more interested in compensation than rehabilitation. Based on over thirty years of clinical experience, I can say with reasonable certainty that once the litigation is over, he will get on with his life and will not seek the same level of psychiatric treatment in which he is involving himself"
It is conceded by Dr White that the received wisdom (from the literature) is that the effect of sexual behaviour of adults on young adolescents is 'severely deleterious'.
"The central question in a claim for "psychic harm' consequent upon the action of a third party or upon a traumatic life event is whether the Claimant is suffering from a mental illness which can be attributed to the alleged stressor, was a mentally ill person prior to the alleged compensable event, has developed mental illness subsequent to the event rather than as a consequence of the event, has psychological symptoms due to other causes such as Substance Abuse, is a distressed person due to personality vulnerabilities causing an over-reaction to the event, or is a well person who is making a claim for financial gain. Another pivotal question is whether there are alternative stressors in the Claimant's life."
He thus trivialises the sexual abuse as the substantive stressor, suggests that Mr McCrae was a vulnerable personality, who over-reacted to the abuse, believes that his subsequent behaviour, including substance abuse, is unrelated to the sexual abuse, and an independent stressor, and considers he is motivated by financial gain. He then concludes that although it is difficult to quantify the effects of about two years' sexual abuse, one can 'rise above' such trauma. This is not the scenario that commends itself to my view of the facts. The opinion of Dr White is in my view flawed, objectively unsupportable, and less than compelling.
Dr Wendy Roberts provided reports that contain a lot of detailed history, but upon analysis, very little convincing objective reasoning. She had access to a lot of material that was not before me, and I needed to take care when assessing her opinion, that it was based on facts proved before me, and the extent to which it was influenced by extraneous material. Ultimately it did not matter as I rejected her opinion. In her report dated 30 January 2007, she tentatively concluded that on the evidence she then had that a diagnosis of a personality disorder of a borderline type, with a short period of clinical depression, seemed to best account for the information provided, but she was uncertain given the reliability of some of the history, and the issue of substance abuse. She then went on to say that 'the subject incidents' (assuming the validity of his account) did have 'some impact' on his psychological condition. It was unlikely to have been caused by those events, 'but could have been exacerbated by them'. She received and reviewed further material and wrote a subsequent report dated 30 May 2007. I read that report and re-read several times the section headed Summary and Conclusions, because I had considerable difficulty in discerning whether she was changing her tentative opinion, and if so how and why. She accepted that Mr McCrae had major depressive symptoms in 'a very acute form' when he first left school, but this was a 'short-lived' episode (at 2.19). She does not plausibly explain why it was short-lived. She then goes on to say that his current presentation reflects a mixture of premorbid difficulties within the family (at 2.23). Do I take it from that, that she considers the sexual abuse has no causative relationship with his current mental state? I am simply unable to accept her opinion, which is tentative at best, and at worst a partisan attempt to trivialise the effects of the sexual abuse.
Mr Defina similarly approached his assessment sceptical of Mr McCrae's bona fides. He concluded that his inability to remain in employment was 'not necessarily indicative' of psychopathology, and that motivational factors would provide an adequate explanation. In short, Mr McCrae is not motivated to seek employment. So much is obvious. What matters, however, is the cause of that lack of motivation, and there is simply no analysis, except to note Dr Wendy Robert's view that he was consciously exaggerating and 'faking bad'.
The expert medical evidence led on behalf of Mr McCrae was in my view more convincing, reflective of the objective reality, and more objectively based.
Dr Foster provided a number of reports and was called to give oral evidence. She was subjected to intense cross-examination, but did not waver in her views. Her diagnosis was influenced by factors that in my view were soundly based on objective material, including the self-loathing, the self-disgust and the self-mutilation. She spoke of dysphoria. Although Mr McCrae functions well in environments where he feels comfortable, safe and respected, his ability to cope in other circumstances is less certain. Although vulnerable, it required the sexual abuse to cause his current condition. She described his condition as 'moderately severe' and foresaw improvement. He will, however, experience suffering for many years, and never recover completely. He will need treatment for a number of years, particularly in the short term while the psychotherapy addresses more directly the sexual abuse, which to date he has been too fragile to address. There are, however, signs of him coming to terms with the abuse. This is a gradual process, not a sudden thing. He will not require life-long therapy, and the need will abate eventually. She believes he is capable of working and will ultimately participate in the workforce, but will never achieve what he would otherwise have achieved. Her psychotherapy has helped Mr McCrae. Her goals have been to equip him to lead as normal a life as possible, involving relationships, and to develop a sense of keeping himself safe, that is to deal with life's stresses without resorting to self-harm, or substance abuse.
Dr John Roberts also provided evidence for the plaintiff. He spoke of the severity of symptoms experienced by Mr McCrae, including self-mutilation down to the muscle, of an intelligent young man with the appearance of normality, but severely affected. His illness affects his motivation. He has a theoretical ability, but intelligence requires something to drive it, and psychotherapy will help decrease negative ideation and help improve his quality of life. These were all concepts that I found persuasive, and which in my view accorded with the evidence, and my own assessment of Mr McCrae.
For all these reasons, I am satisfied that Mr McCrae suffered a severe and debilitating psychological condition as a result of the sexual abuse he experienced. The nature, extent and duration of that condition are attributable to the abuse, and not to any pre-existing psychological condition, which, to the extent that it existed, would have resolved itself in the fullness of time. The only relevance of his mental state before the abuse was that it rendered him vulnerable and susceptible to the attacks on him by Potter. The psychological condition he developed as a result of the abuse was fuelled and aggravated by the feelings of self-loathing, particularly the guilt from having introduced other innocents to the predator. The subsequent so-called stressors, the substance abuse, the bulimia and the alienation from his parents, the withdrawal from society and the inability to participate normally in the work-force, are all consequences of the abuse, not causes of his psychological picture. I find, therefore, that he has been substantially incapacitated, needed significant medical support and treatment, and that the quality of life and his general enjoyment of life during his teenage years through to his early twenties seriously impaired. There has, however, been steady improvement, to the extent that he is emerging from the more debilitating effects of the abuse and approaching the point where his outlook is positive and there is reason for optimism as to his future.
Future medical treatment 53. The Association submitted that any award for future medical treatment should be modest. In this regard its position is that he has already been 'over-therapised' and that rather than this treatment being beneficial, it has in fact entrenched Mr McCrae in the belief he has something wrong with him, and made him dependent on the ongoing psychotherapy.
Diminution in future earning capacity 56. So far as future economic loss is concerned, it was submitted that a buffer of $55,800.00 is adequate. In my view such an amount would be inadequate.
The Association submitted that I should assess the severity of the non-economic loss (as a proportion of a most extreme case) in the order 30% of a most extreme case, or $98,000.00. In my view that is inadequate. Counsel for Mr McCrae submitted that I should assess the severity at 65%, or $277,550.00: s 16 of the Civil Liability Act 2002. In my view that would be excessive.
In assessing the damages for non-economic loss for Mr McCrae, I have regard to the totality of his circumstances. In particular, I take into account his very young age. He has already suffered over the formative years of his youth. He is now faced with a lifetime of bad memories. He also has the scarring on his arms from self-mutilation.
However, the bulk of his suffering has been in the past. In that respect this is unlike a case involving physical deformities or disabilities that are carried for the balance of a lifetime. Mr McCrae's outlook is in not in that category. Indeed there is reason for optimism and a positive outlook for a life with a high degree of what the psychiatrists liked to call QOL (quality of life).
For these reasons and having regard to the findings I have made, I determine that the severity of the non-economic loss as a proportion of a most extreme case be assessed at 40%. That produces a statutory amount of $171,000.00: s 16(3) of the Civil Liability Act 2002.
I find, therefore, that Mr McCrae's non-economic loss should be assessed at $171,000.00 as against the Association.
The assessment of general damages against Mr Potter is to be undertaken without regard to the limitations imposed by the Civil Liability Act 2002. It was submitted for Mr McCrae that I should award $300,000.00. Having regard to common law principles, that in my view is an appropriate amount. I find, therefore, that Mr McCrae's general damages should be assessed at $300,000.00 as against the second defendant. As I have said, the bulk of such damages relates to the past. I apportion the general damages for the past at 75% and for the future at 25%. I award interest, therefore on $225,000 at 2% for 8 years, beginning in 1999 when the abuse commenced, an amount of $36,000.00.
Exemplary damages against Potter 69. I come, finally, to the assessment of exemplary damages to be awarded against Potter. Such damages are to be awarded to register the seriousness of the misconduct, to punish and deter, and to assuage any urge for revenge: Lam v Cotogno (1987) 164 CLR 1 at page 9. This is an appropriate case for such an award of such damages.
Disposition 72. For these reasons I enter verdicts for the plaintiff, for $501,941.00 against the first defendant and for $766,941.00 against the second defendant.
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McCrae
The Boy Scout Association
CITATION: McCrae v The Boy Scout Association (NSW Branch) [2007] NSWDC 196
(1987) 164 CLR 1