Plaintiff v Defendant

1 The plaintiff was born on 12 February 1975. He is the youngest of three brothers. He attended primary school in Geelong, where his family lived. His parents worked in education. The family was close and supportive. In 1987, he commenced in Year 7 at Geelong College. His older brothers also attended the school.

2 In late 1988, when he was in Year 8, the plaintiff first attended the 'House of Guilds', which was on the grounds of the senior campus of the school. The plaintiff was then at school at the junior campus, which was nearby. The plaintiff attended the House of Guilds after school.

3 Broadly speaking, the House of Guilds was a building or complex of spaces fitted out to facilitate woodwork, ceramics and other crafts. It was open to students of the school and could be attended out of school hours. It was also open to students of other schools and members of the community upon the payment of a membership fee. The particular part of the House of Guilds at the focus of the present case was the 'woodwork room'.

4 Bert Palframan was an honorary member of the House of Guilds. He attended the woodwork room regularly, although several witnesses gave evidence that he did not seem to be working on his own projects while he was there.

5 Palframan was in his early 70s at the time, and passed away in about 1999. The plaintiff contended that Palframan should be taken to have been, in effect, an employee of the school, however it is not apparent that he was ever trained as a teacher and he did not have any formal status as a teacher paid by the school.

6 It is not in dispute that on many occasions in the period between late 1988 and mid-1990 the plaintiff was sexually abused by Palframan. In essence, he was 'groomed' at the House of Guilds and the acts of abuse then came to occur in a 'process' that regularly commenced in the 'woodwork room' and continued in Palframan's car and then at his unit in Geelong. On one occasion, abuse took place in the plaintiff's own home.

7 In this period, Palframan sought to and did develop a friendship with the plaintiff's parents. In mid-1990, when the plaintiff was in Year 10, the plaintiff refused the abuse and it ceased.

8 The plaintiff gave evidence that he felt deep shame about the abuse, which continues to this day. He kept the abuse a secret until an incident in 2007 referred to further below.

9 The plaintiff's case was that the abuse affected him significantly in his schooling and in many ways since. He became angry and withdrawn and 'haunted' by thoughts of it. At some point, the plaintiff set himself to become 'successful'.

10 The plaintiff completed VCE in 1992 and commenced a Bachelor of Commerce at Deakin University in Geelong. He failed quite a few of his subjects at that time and discontinued in 1995. He said that he had been 'kicked out'.

11 In 1996, the plaintiff undertook a traineeship at the Carlton Football Club. That did not go well for him either. He was living in Melbourne at that time, but later moved back to Geelong.

12 The plaintiff re-enrolled in his Bachelor of Commerce and completed it in 2000.[1] In that period, it seems that he worked part time at the Eureka Hotel in Geelong. At some point he seems to have commenced to work there essentially full time and at one point was the nominee.

13 The plaintiff met his now wife at the Eureka Hotel. She also worked behind the bar and was also studying commerce at Deakin. She is two years older than the plaintiff. They were married in early 2007. She now holds a senior position with a health insurer and gave evidence at the trial.

14 In late 2004 and with the encouragement of his now wife, the plaintiff ceased working at the pub and commenced working in sales and then management with a liquor company, Diageo. He held several positions with that company and had one or more promotions.

15 In mid-2007, while working with Diageo, the plaintiff attended a training course in Sydney and suffered a form of breakdown. He had thoughts of self-harm and harming others. He gave evidence that he experienced nightmares relating to the abuse and, in particular, struggled with travelling for work and feelings of distress and being out of control. At that time, the plaintiff informed his wife and family of the abuse, attended his GP, was referred to a psychologist, Gary McMullen, and had about twelve months of treatment with another psychologist, Pippa Grange.

16 Around this period, the plaintiff worked part-time with the Footscray Football Club, essentially as a volunteer on match days, although at some point he seems to have been paid an honorarium.

17 The plaintiff ceased work with Diageo in late 2011 and did not work again until about July 2012. He then worked for a short time as national account manager with Modern Baking, which did not work out.

18 In late 2013, the plaintiff became key account and network manager with Lion Dairy & Drinks. That required him to travel, which caused him considerable distress. He gave evidence that he had difficulties in that employment, albeit that he achieved at least one promotion in his time with that company.

19 In about September 2017 the plaintiff commenced as a regional manager with Treasury Wine Estates. He gave evidence of further struggles in that employment, especially with travel. That said, he held more than one position with that company as well.

20 In mid-2018, the plaintiff progressed to the position of head of field sales at Treasury Wine Estates. His manager was Sarah Parkes, who gave evidence at the trial. The plaintiff had a base salary of $240,000 per annum. There was also an incentive plan.

21 In August 2019, the plaintiff was made redundant from his employment with Treasury Wine Estates. He was consumed with anger and distress. He has not worked since.

22 It was evident both in his presentation at trial and from other evidence that the plaintiff has 'fallen in a heap', psychologically. Since late 2019, the plaintiff has been receiving regular treatment with Anne-Marie Davis, psychologist.

23 There was no dispute that the plaintiff has suffered psychiatric injury as a consequence of the sexual abuse at the hands of Palframan. In a report dated 12 March 2021, Ms Davis identified the plaintiff as suffering post-traumatic stress disorder and generalised anxiety disorder.[2] The diagnosis of Dr Tagkalidis, psychiatrist, who saw the plaintiff for medico-legal purposes, was similar.[3]

(a) negligent; and/or

(b) vicariously liable -

in respect of his injury, loss and damage.

25 The plaintiff claims damages. In broad terms, he alleges that the 'trajectory' of his life was altered for the worse by the abuse. Among other things, he claims that he would have been either more 'successful' or 'successful' earlier and in a more sustained way but for the abuse.

26 The defendant denies any vicarious liability for the abuse perpetrated by Palframan.

27 As to negligence, it is not in dispute that the defendant owed to the plaintiff a non-delegable duty to take reasonable care to ensure his safety at school. The defendant essentially contends that it discharged that duty and points to evidence concerning the presence of the warden of the House of Guilds, Mr Elliott, together with the system of rostering and supervision undertaken within the House of Guilds. The defendant also contends that its duty did not extend to the abuse by Palframan perpetrated in his car, unit and in the plaintiff's home.

28 As to damages, as I have noted, the fact of abuse was not disputed, but the 'trajectory' claim was strongly contested. In that regard, it was said, among other things, that the plaintiff was likely to return to work within two or three years and at roughly the same level at which he was working prior to being retrenched from Treasury Wine Estates.

29 The plaintiff gave evidence concerning his family, early schooling and upbringing. Some of that is referred to above and none of it appeared contentious.

30 The plaintiff gave evidence of attending the House of Guilds with friends when he was in year 8, with the intention of making a skateboard. He was able to walk into the House of Guilds in his school uniform carrying his bag after school. He described the layout of the House of Guilds. The woodwork room contained what was referred to as a 'nook' under the stairs.[4]

31 The plaintiff met Palframan and thought that he was 'just a teacher'.[5] The plaintiff attended the House of Guilds regularly. Palframan started to show interest in him. Palframan would come close and invade his personal space. The plaintiff said it was 'a bit awkward' from the 'very start of meeting him'.[6]

32 At some point, Palframan started laying his hands on the plaintiff, including placing his hands up and underneath his shirt. He also started to touch and rub the plaintiff's crotch. This was occurring through his clothing. The plaintiff said that it happened 'every time' he attended the House of Guilds, which would be once or twice per week. He said that Palframan would take 'any opportunity' to touch him, and that the abuse took place at many locations in the woodwork room.[7]

33 The plaintiff felt this behaviour was 'really weird'. He stated that he remains haunted by the fact that he 'could never show the strength actually to push [Palframan] away for the things that he was doing to me'.[8]

34 At some point during the first term in 1989, when the plaintiff was in Year 9, Palframan offered to give the plaintiff a lift home from the House of Guilds. That led to Palframan and the plaintiff attending the office of the warden, Mr Elliott, in which there was a telephone. The plaintiff gave evidence that Mr Elliott was in the office at the time. The plaintiff rang his mother and his mother allowed the lift.

35 Later, in the vehicle, Palframan 'had his hands all over me', including up the plaintiff's shorts. Palframan said that he needed to stop at his home and then invited the plaintiff in. Palframan pinned the plaintiff at the kitchen bench and sexually assaulted him. In the course of this evidence, and, indeed, at many other points in his evidence, the plaintiff became extremely distressed, particularly when describing the incidents of abuse.

36 The plaintiff gave further evidence concerning the abuse. He said that from late 1988 until mid-1990 it had occurred on 50 or more occasions. Many of those occasions involved Palframan masturbating both the plaintiff and himself. On one particular occasion, Palframan ejaculated on the plaintiff's legs, and on another occasion on the plaintiff's clothing. The plaintiff gave evidence that he was horrified and embarrassed by these 'shameful' events. He said that on top of that Palframan sought to befriend his parents, whom the plaintiff plainly regarded as very good people.

37 On one occasion, Palframan assaulted the plaintiff in the plaintiff's own home. The plaintiff gave evidence that on this occasion Palframan 'appeared' when no-one else was home.[9] The abuse also took place on five or six occasions in connection with delivering pamphlets in the Belmont area.

38 The abuse followed a 'process' which would start in the House of Guilds before progressing to Palframan's car and unit. The plaintiff described his inability to 'break the cycle' of abuse.[10] As a result of the abuse, which Palframan described as 'our secret'[11], the plaintiff suffered nightmares, feelings of guilt and shame. The plaintiff did not disclose the abuse to his parents, brothers or friends. The plaintiff described himself as not 'know[ing] what right and wrong was'.[12]

39 At some point, the plaintiff developed a lump on his penis. He was ashamed and feared that this was maybe something that he had 'caught' from Palframan.[13] Palframan often told the plaintiff that the plaintiff was 'sick'.[14]

40 In mid-1990, the 'process' was unfolding again while the plaintiff was in Palframan's car. Palframan put his hand on the plaintiff's leg but on that occasion the plaintiff said 'no'. At this, there was a look of horror on Palframan's face. The plaintiff feared that there would be repercussions or that Palframan 'may come and get me again'.[15]

41 After the abuse, Palframan continued to have contact with the plaintiff's parents. The plaintiff noted that Palframan would also watch him play cricket.

42 Much later, when the plaintiff was in his twenties, Palframan died. The plaintiff's father asked the plaintiff whether he had been interfered with by Palframan, as 'he'd heard some rumours'.[16] The plaintiff denied any abuse and, at that time, felt relieved as details of the abuse would not come out.

43 The plaintiff told his parents of the abuse much later, in mid-2007, after the breakdown which occurred when the plaintiff was in Sydney working with Diageo.

44 The plaintiff said that he had been 'trying to build a façade'.[17] He said that he feared being judged. He feels terrible now about how 'weak' he was and how he was powerless and lost control. He told the Court that he had never really had 'authentic friendships' and had operated behind his 'façade'.[18] He had been riddled with nervousness and anxiety and described himself as a 'troubled soul'.[19]

45 The plaintiff said that he had pushed himself to complete VCE. He also described his sporting and other achievements. Nonetheless, the events with Palframan had haunted him. He felt shame and 'incredible sadness'. It was like he was 'living a lie'. He thought that 'bad things were going to keep happening to me'.[20]

46 After completing school, the plaintiff attended Deakin University where he studied commerce, but later dropped out.[21] He said that he was 'struggling with the demands of the university' and feelings of isolation.[22] Later, in cross examination, he explained this by reference to his difficulties coping with the effects of the abuse.

47 The plaintiff gave evidence about his traineeship with Carlton Football Club, which he found 'really difficult', and his subsequent positions at the Eureka Hotel in Geelong. In that context, he re-commenced and then completed his commerce degree. He said that he enjoyed the pub work, due to the lack of pressure. He did not feel that he had to prove himself and 'felt safe'.[23] Ultimately he left the pub, as he felt it was not a sustainable job.

48 He started with Diageo in December 2004. A considerable degree of documentary evidence was tendered concerning his employments after that time with Diageo, Lion Dairy & Drinks and Treasury Wine Estates.[24]

49 The plaintiff was married to his wife, 'PCC', in January 2007. That year he suffered a breakdown while in Sydney with Diageo.[25] The plaintiff confessed the abuse to his wife and parents. That was only a few months into his marriage and he was very concerned that he would 'lose her'.[26]

50 The plaintiff was taken to his sketch of the relevant areas in the House of Guilds.[27] He identified the woodwork room, stairs, office, utilities room and 'nook'. He said that Palframan was 'always' in the woodwork room. Palframan would push him into the 'nook' and abuse him.[28] Palframan touched the plaintiff 'everywhere' throughout the woodwork room.[29]

51 The plaintiff described where Palframan parked his vehicle. The door to Mr Elliott's office was usually open and had a line of sight to the benches in the woodwork room. There was also a narrow window that looked out to that area. There were telephones in the office and utilities area. Palframan used the telephones. Palframan had a key to the House of Guilds and would lock up.[30]

52 The plaintiff said that he had not been educated about sexual consent or child abuse. He had no idea about the concept of paedophilia. He had not been instructed about any 'pathway' for complaints. He assumed that he could have spoken to a teacher, although no specific pathway was identified.[31]

53 The plaintiff gave detailed evidence concerning difficulties later in life, especially when traveling for work. He had 'haunting memories' and would have his wife on the phone. He was unable to sleep. When he could sleep, he had nightmares.[32] He would take family members with him. He flew his mother to London to accompany him on a business trip. He said that he tried to 'control' the situation. He was fearful that work colleagues would find out that he needed support in this way.

54 The plaintiff said that 'the complex impacts of what this monster did' were beyond those relating to travel.[33] Though the plaintiff attempted to keep up his façade, his behaviour at work was affected. He was jealous of others and tried to control situations.

55 The plaintiff left Diageo in December 2011. He said it 'got too much for me'.[34] He found it very difficult to deal with the Coles account which he described as a 'difficult customer'. He said that he walked away and it was a 'disaster'.[35]

56 Commencing in 2005, he was involved in an essentially honorary capacity with the Footscray Football Club. He assisted on match days and communicated with the runners and players. He had difficulty with travel, which he described as giving rise to 'terrible moments'.[36] He would try to distract himself, particularly with eating. He ceased that role in about 2011 when the coach was 'sacked'.

57 In July 2012 he commenced with Modern Baking, as the national account manager for the Coles account. He described that as a 'stupid decision' which led 'straight back to the same anxieties'[37]. He was only in that job for six weeks.

58 In late 2013 he commenced as the regional key account manager for Lion Dairy & Drinks. In 2014 he was promoted and in 2016 was promoted again and became national sales manager for the 'network'. The plaintiff gave evidence of his salary package including discretionary bonus.[38] He worked at Lion until October 2017.

59 The plaintiff found his time at Lion 'incredibly stressful'. He was involved in politicking while he was there and was 'not proud of that'. He never went to Queensland or Western Australia while he was in that job, although he did go to Sydney and stayed with his brother.[39]

60 The plaintiff gave evidence of his weight having been a consistent problem for him. He said that his present weight was roughly 121 kilos. He described himself as an 'emotional eater'.[40] He described food as his biggest distraction although he also uses a guitar to distract himself. He described his day-to-day life as involving 'a lot' of sleep during the day and also watching sport on the couch.[41]

61 In November 2017 he moved to Treasury Wine Estates. He was approached to take up that position. He had a salary package and discretionary bonus.[42]

62 He had to deal with customers and with other staff. He had eight direct reports. He found having to do that and keep up his 'façade' frightening and stressful. The plaintiff felt that if he had been unconstrained he could have been in a more senior role. Potentially he could have been in a managing director role.[43]

63 The plaintiff found it difficult to manage the pressure and stress and described his confidence levels as always having been an issue. He often worked from home, which would allow him to 'sleep and get some energy to be able to deal with all of the challenges'.[44] He found this embarrassing. He found it 'endless and tiresome' trying to manage and control the situation so that his symptoms would not become too intrusive.[45]

64 In August 2019, the business was restructured and he was made redundant. Just before that there were discussions about him not travelling.[46]

65 The plaintiff has not worked since then. He had a conversation with a recruiter in early 2020, but gave a 'really poor account' of himself.[47]

66 The plaintiff said that he could not work; at the moment he is 'so challenged by ... existing'. He no longer wanted the 'façade'. The plaintiff said that he is a 'worker'; and expressed frustration at being unable to work.[48]

67 The plaintiff gave evidence concerning treatment with Pippa Grange, psychologist, commencing in 2007.[49] That allowed him to 'put one foot in front of the other'. It did not get him beyond slightly coping.[50]

68 In more recent times, he has had treatment with Anne Marie Davis, psychologist. That has been a 'deeper journey' involving dealing with feelings of guilt. He became very distressed in that part of giving his evidence.[51]

69 He has not received treatment from a psychiatrist. His preference is not to take medications because he has been worried about 'another thing that controls [his] life'.[52]

70 His diagnoses have been post-traumatic stress disorder, general anxiety and depression. Treatment has mostly been 'talk therapy'. There has been mention of hypnotherapy and also psychedelic medications, although they had not been recommended.[53]

71 He drinks very occasionally. He takes the dog for walks for 25 to 30 minutes. He later gave evidence of playing golf every few weeks.

72 The plaintiff again became emotional when giving evidence concerning the impact of his symptoms on his relationship with his wife. He feels 'endlessly guilty'. He gave evidence concerning challenges in their intimate life and his flashbacks and nightmares of the abuse.[54] In the course of much of this evidence the plaintiff was very distressed.

73 That applied equally to the evidence given concerning his daughters. They are now 10 and 12. He does his best. When ruminating, the plaintiff said it was difficult to be patient. He is concerned that he sets a bad example with anger, moods and eating. He told the Court 'I want them to have a happier life than I have'.[55]

74 The plaintiff gave evidence concerning his parents. His mother is suffering from Parkinson's disease. They still live in the family home in Geelong. The plaintiff gave evidence that he feels terrible visiting because of the abuse he suffered in the family house on one occasion at the hands of Palframan.

75 The plaintiff was asked about his relationship with his brothers. He described them as his 'best mates'. He said that he was very proud of them, but that he was 'endlessly jealous' of their successful careers and happiness. The plaintiff said 'I don't understand why I can't have that', at which point he again became very distressed.[56]

76 In cross-examination, the plaintiff was asked about his elevation to the first XI cricket team when he was in Year 9. He was mixing with older boys, socialising and at ease in the group. He also confirmed that he received house and school colours. He travelled with the school cricket team to the United Kingdom when he was 15 years of age. He confirmed that had been was 'gregarious', qualifying this by reference to his 'very good façade'.[57]

77 He was asked about his VCE score and could not remember it. His father had been a lecturer at Deakin University and his mother a primary school teacher. It emerged that both of his brothers had been to university and completed degrees.

78 He was asked more questions about cricket and playing for the Essendon Cricket Club and then in Geelong in his early twenties.

79 He was asked questions concerning most or all positions occupied by him during his working life, commencing with the traineeship at Carlton Football Club. He worked in the Bass outlet and sold tickets and memberships. He had hoped that the traineeship would be 'the springboard into a career in sport', but it was not to be.[58]

80 In 1997, the plaintiff returned to Deakin University. He did about three or four subjects per year. At the same time he was working at the Eureka Hotel in Geelong. It was a renowned nightspot in the nature of pub and nightclub. There were about 25 or 30 staff working there per night. He used to work there from 8:00pm until 3:00am on a Thursday night and from 8:00pm to 5:00am on a Friday and Saturday night. He became the general manager. Originally he was a barman and met the woman who later became his wife (PCC), who also worked there casually. Later, when he was the general manager, he was responsible for staff and various other aspects of the business. He was a nominee, responsible for the licensing arrangements. He worked there until he started at Diageo.[59]

81 The plaintiff was taken through many of the records relating to his positions at Diageo, Lion Dairy & Drinks and Treasury Wine Estates.[60] He essentially agreed with the contents of all of the documents that he was taken to. At Diageo, he started as a business development manager looking after a territory and was paid a base salary of $55,000. He earned various salaries in the positions he held after that time. In 2016, when he was the national network sales manager at Lion Dairy & Drinks, he earned a base salary of $180,000. In 2017, when he was headhunted to work at Treasury Wine Estates, he had a salary of $230,000. In 2018, when his title became head of field sales Australia, he earned a base salary of $240,000 plus incentives.[61]

82 He was cross-examined concerning his involvement with the Footscray Football Club until the end of 2011. He managed that while he was also working at Diageo.

83 He confirmed that he had been successful and good at his job at Diageo. He described that as having been, 'despite all the odds'.[62]

84 He was cross-examined concerning the extent to which he had people reporting to him at Lion Dairy & Drinks. He explained various aspects of that business. He had increased responsibility and interstate travel. He had difficulty in each of the roles that he held there.

85 He was taken to various interstate and other trips which he took in the course of his employments from 2011. He was also asked about some of his personal holidays, including a holiday that he took with his father and brothers to attend the US Masters golf tournament in 2016.

86 He was asked about the impact of the pandemic upon the industries in which he used to work. Aspects of that work are now 'audio-visual'.[63]

87 The plaintiff confirmed that he had some transferable skills, but that strong underlying knowledge would be required in sales of medical supplies or pharmaceuticals.

88 He denied a suggestion that it could be assumed that he would return to work within two years.[64]

89 The plaintiff was taken to aspects of his attendances on his family doctor in June 2007.[65] The effect seemed to be that his experience of suicidal ideation when in Sydney was not recorded in the notes. The plaintiff said that he had told his doctor about it, and had worked on it with Mr McMullen, psychologist, to whom he was then referred.[66]

90 He was asked about investigations in connection with potential sleep apnoea and his right knee condition leading to replacement surgery performed in April 2021.

91 He was asked questions about his wife's employment. In his tax return in 2019 it was recorded that his wife had earned $424,983. It was suggested that he had said to Dr Tagkalidis, psychiatrist, that he was not under any financial strain, which the plaintiff denied.[67]

92 The plaintiff was asked a series of questions relating to the House of Guilds, many by reference to sketches and a series of photographs tendered later in the trial.[68]

93 The plaintiff did not know that people who were not members of Geelong College used the House of Guilds. He had not seen elderly people using the House of Guilds and had no recollection of students being there from other schools.

94 He was asked about Mr Elliott's presence in the House of Guilds and in his office. It was suggested that Mr Elliott was there most of the time, and the plaintiff agreed that he was there some of the time. It was suggested that there was a teacher rostered in the woodwork room in addition to Mr Elliott, and he said that he could not recall that and did not know about the roster. The plaintiff said that there may have been a teacher on duty, but this was not always the case. In the plaintiff's words 'the most consistent person that was always there was Palframan.'[69] The plaintiff agreed that Mr Elliott was a very nice man. He was asked about whether Mr Elliott retired in 1990 and he said that he 'wouldn't know'.[70]

95 The plaintiff was taken to a particular part of a history recorded as given to Mr Entwisle, psychiatrist, concerning Palframan having befriended his parents. The plaintiff considered that to have been 'monstrous', and 'one of the most shameful things that I've ever seen somebody do'. He said that Palframan had taken 'mum and dad for a complete ride'.[71] His parents were, in effect, both teachers. Whenever Palframan was in the family home, the plaintiff 'tried to get away'.[72]

96 The plaintiff was asked about his social life and hobbies. He admitted that he had friends visit. He said that he tried to entertain himself and looked to keep himself busy to run away from his worries.

97 The plaintiff was cross-examined by reference to notes of Mr McMullen, psychologist, in which it was recorded that Palframan was 'not a full-time staff member' and 'retired man'.[73] The plaintiff could not recall that. He asked about a note which recorded 'majority of the abuse occurred at his home', and could not specifically recall having said that either.[74]

98 It will be evident that the plaintiff was a very emotional witness. There were several breaks to allow him to compose himself. Even more commonly, he sobbed while pushing himself through his evidence. There were areas in which his emphasis and even some of the content of his evidence seemed to be more a product of his distress and anger than his memory, but that is perhaps understandable. In broad terms, I accept him as an witness of truth, and, in final submissions, counsel for the defendant did not really suggest otherwise.

99 PCC is the plaintiff's wife. At times, she was also emotional in her evidence. That, too, was understandable. More importantly, she presented as plainly honest, fair and admirable in many ways. She has supported her husband and sought to alleviate his distress while also raising their two daughters and holding down senior and responsible employment.

100 PCC met the plaintiff when she was 21 years of age. They were both working at the Eureka Hotel. She was studying commerce at Deakin University. They did not meet there; they met working behind the bar. The plaintiff was highly social, engaging and 'gregarious'. PCC said he was 'attractive to me'.[75]

101 They were married in January 2007. They had a break prior to being married. He was then working with Diageo. Before that he had been working in the pub. That was not the kind of job that PCC thought he should be doing long-term because it was not suitable for raising a family. She encouraged him to complete his degree in commerce. Their daughters were born in 2009 and 2011.

102 She recalls the incident in the middle of 2007 when the plaintiff disclosed the abuse. Before that PCC had not been attuned to his problems with travelling or his strategies to cope. She could not recall anything of note in the first six months of their marriage.

103 PCC described the manner in which the plaintiff presented himself to her at that point as the same way he did to the world. PCC said that the pub had suited him and he had been reluctant to leave that work. She said it 'completely makes sense to me' now that she knows about the abuse.[76] At that point, PCC became distressed.

104 PCC said that the incident in mid-2007 was a 'very significant event'. She said that 'the trauma was obvious'. The experience was 'incredibly devastating' for both of them.[77]

105 PCC said that the plaintiff continues to have 'dark times'. He was 'very broken' in the period after he divulged the abuse to her. He still has 'significant episodes'. He gets overwhelmed and will break down and get quite distraught. She said that it was terrible to observe and that it impacts the whole family. She said that it can overcome him quite physically and can be quite distressing. She helps to 'coach' him. He also works with psychologists and others. There are moments when that is not enough. She described it as a 'daily ongoing challenge'.[78]

106 She was asked about when he had worked. She said that he had applied 'a strategy' to allow him to turn up. He had put on 'armour' each day.[79] It had been fatiguing for her to watch him do it. She confirmed that he relates well when he is in control, but not when he is not in control. She said that he can be quite aggressive.

107 She was asked about the extent to which he helps at home. She said he tries his best but that he is fatigued and his moods are often erratic. She said that he can be reactive and angry. It can lead to unreasonable behaviour. Again, at this point in giving her evidence, PCC became distressed.

108 In the last 18 months to two years, the plaintiff has become less social and more withdrawn and unhappy.

109 PCC was asked about coping strategies when he was travelling. She noticed changes in his behaviour whenever there was a suggestion of travel on the horizon. He would try to avoid it. She went on some trips with him. Other family members were involved as well, and at one point he travelled with his mother.

110 PCC was asked some questions about his redundancy from Treasury Wine Estates. She gave evidence that she did not know much about that, but having regard to the state he was in when he finished that job she could not foresee him going back to work at the moment. She said it was a daily challenge and struggle for PCB.

111 She was asked about him undertaking golf and walking the dog. She said that while she was not 'pushing him' too hard she encourages him to get of the house and she can be reasonably successful at that. On the other hand, he is quite withdrawn and 'hunkering down'.[80]

112 She was asked about his weight which she identified as an ongoing challenge for him. She confirmed that he does not take criticism well at all. She was asked about the state of the marriage in terms of affection and intimacy and confirmed that there were 'challenges'. She said that he can have 'moments of ... images', although he had never discussed them with her in any detail.[81]

113 When asked about the possibility of her husband returning to work, PCC stated that she could not 'see [it] happening'.[82] She noted his intense anxiety which can present itself physically. Anxiety attacks can seem to happen out of nowhere, often causing the plaintiff to wake up at night.

114 In cross-examination, PCC confirmed that she was working in a full-time position. Her husband shares the responsibilities of dropping off and picking up the children. It was suggested that the responsibility of dinner might fall upon her husband, but she said that she 'can't expect a lot' from him. She said: 'I do the bulk'.[83]

115 As to her current job, she described it as a 'sideways step'. She is paid $270,000 per annum excluding bonuses. She has received bonuses over the last five to seven years and that usually takes her into the realm of earning about $300,000 per annum. In one year she earned more than $400,000.[84] She was also asked about the family home and said that they were continuing to pay it off. She was asked about a history recorded by Dr Tagkalidis to the effect that the family is not under financial strain and she agreed with the suggestion.

116 She was asked about the plaintiff attending lawyers and doctors since commencing court action in 2019, and whether he has had to relive the trauma. She confirmed that it had been difficult for him to 'talk in detail'.[85]

117 She was asked whether she could exclude him working. She reiterated that she could not foresee him being able to work unless there is 'some sort of miracle'.[86]

118 In re-examination, PCC confirmed that when her husband had been working they had received outside support from nannies and her parents. That kind of support could still be available. She confirmed that their daughters were at a private fee-paying school where it was intended that they stay.

119 She was asked about any suggestion that he was choosing not to work. She did not agree with it. She thought that if he could work he would 'love to', but that the question was whether he was capable of doing so.[87]

120 Dr Tagkalidis is a psychiatrist who saw the plaintiff on two occasions for medico-legal purposes. His qualifications were not in doubt or in dispute. His two reports were tendered in evidence.[88]

121 Dr Tagkalidis gave evidence-in-chief that he had seen the plaintiff via electronic means, which he described as 'not as good as seeing a person in the same room' but good enough.[89] Dr Tagkalidis gave evidence that the abuse of which he obtained a history occurred in a period in which the plaintiff was 13 to 15 years of age, which is when major developmental changes occur. In his opinion, the abuse altered the capacity of the plaintiff to manage stress and 'dramatically shifted' 'the whole of [PCB's] educational and working career'[90].

122 Dr Tagkalidis was taken to part of his more recent report which referred to recent 'significant decompensation'.[91] Dr Tagkalidis explained that the plaintiff had tried to contain his emotional distress concerning the abuse throughout the whole of his life, but since the commencement of the legal case and related events his 'façade' had broken down. In Dr Tagkalidis' opinion, the plaintiff was going to struggle for the indefinite future. Dr Tagkalidis said that the plaintiff's coping mechanism is 'really broken' and noted that it is difficult to remake such a mechanism once it is gone.[92] He noted, also, that one of the results of such a 'decompensation' was that one would 'become much more consistently and easily overwhelmed by any kind of stress'.[93]

123 Dr Tagkalidis gave evidence concerning the plaintiff's very powerful sense of shame about the abuse. The 'façade' had defended him from those feelings of shame. But without the façade Dr Tagkalidis did not believe that it could be rebuilt in a functional way in the foreseeable future. Dr Tagkalidis was referred to the plaintiff's current symptoms and described him as 'struggling gigantically'.[94]

124 Dr Tagkalidis was asked about his prognosis concerning the plaintiff's return to work. He was of the opinion that it was likely that the plaintiff would remain unable to work for the foreseeable future. He considered, and he said in his report, that it was likely that the plaintiff would re-enter far less stressful and lower remunerated work 'at some point in the future'. He considered it to be 'highly unlikely' that the plaintiff would re-enter highly stressful work. He did not consider that the plaintiff could cope in that work on account of the difficulty in rebuilding his 'dysfunctional means of coping', such as travelling with family members, which the plaintiff had used to manage his anxiety.[95]

125 Dr Tagkalidis said that it was hard to predict when the plaintiff could return to less stressful work. He could not imagine it within the next two to three years. He thought that the chances slowly increase from four to five out to 10 years. Where in that period is a guess. His 'best guess' was that 'in 10 years' time ... he would be able to do some form of lower level work'.[96]

126 The natural history of a condition such as the plaintiff's is that it will attenuate but he will always have the difficulties 'burned into him'. Any significant external stress will potentially set him back. He is vulnerable to setbacks.[97]

127 Dr Tagkalidis was cross-examined in a searching manner. At times, the tone and the terms of the cross-examination were robust.

128 The cross-examination commenced with attention given to the fact that parts of the two reports were identical whilst other elements of the reports appeared to differ from one another. Dr Tagkalidis explained that on the second occasion he took the plaintiff through the history that had been obtained on the first occasion and annotated the changes when advised of them during the second consultation. In the course of that evidence, Dr Tagkalidis held up his first report which showed his handwritten annotations.

129 The cross-examiner referred Dr Tagkalidis to aspects of the plaintiff's evidence concerning the abuse in the woodwork room as opposed to the abuse that occurred in the car, in the unit and on one occasion at the plaintiff's family home. The cross-examiner compared aspects of that evidence to the history in Dr Tagkalidis' reports, which was in broader terms. The cross-examiner sought to compare the abuse in the woodwork area to the abuse at the family home and Dr Tagkalidis gave evidence that he would consider them to be a 'continuum.' In so doing, I understood him to acknowledge that the latter abuse was of a 'serious degree'[98] but that he had understood the abuse to be as a whole.

130 It was suggested to him that there was an enormous difference between the forms of abuse, and Dr Tagkalidis stated that the abuse 'can't easily be separated out'.[99] He again gave evidence that he understood them to be a 'continuum'. In the course of this lengthy segment of cross-examination, Dr Tagkalidis was referred to various parts of the plaintiff's evidence.[100]

131 Dr Tagkalidis was asked whether he had seen the plaintiff's school reports. He did not think he had seen them. There was an element of criticism of Dr Tagkalidis in the tone of the cross-examination. Dr Tagkalidis considered there to be 'valid criticism' in the suggestion that he had not obtained all relevant details, but he observed that an analysis of school reports does not always capture the 'totality of the effects on a person'[101].

132 Again, parts of the evidence including the evidence of the plaintiff's wife were put to Dr Tagkalidis. Dr Tagkalidis was also asked about what he had understood concerning the plaintiff's work history and the fact that his report did not seem to record or acknowledge every position which the plaintiff had held with the various organisations that he had worked with. Dr Tagkalidis, in general terms, indicated that his understanding of the plaintiff's work history was a broader one. Dr Tagkalidis defended the comments made in his report concerning the effect upon the plaintiff's work performance as a result of the abuse.

133 The cross-examiner challenged Dr Tagkalidis in some detail concerning the reference in his report to the 'detrimental shift' in employment achievement.[102] Dr Tagkalidis explained that by reference to other parts of his report and his opinions concerning the innate abilities of the plaintiff; whom he regarded as both intelligent and capable of achievement. He considered it to be highly likely that the plaintiff would have been more successful and consistent in his performance but for the abuse.[103] Dr Tagkalidis gave this evidence in a very patient tone.

134 Dr Tagkalidis was asked about the nature of the plaintiff's treatment and the extent to which he was obtaining psychological strategies to cope. Dr Tagkalidis did not consider that the plaintiff will ever cope in the same way as he would have. He considered the plaintiff's façade to have been dysfunctional and to have broken down. He considered the objective of treatment to be to support and bolster the plaintiff's coping mechanisms, but that he has been damaged internally and coping strategies can never 'cure' this 'level of damage'.[104] He considered that it was extremely unlikely that the plaintiff will substantially improve.

135 Dr Tagkalidis was asked about the end of the litigation process and whether that would sponsor some form of recovery. He acknowledged that it should help marginally in the short term.

136 Dr Tagkalidis was asked whether he regularly provides reports for the plaintiff's solicitors in other matters and he acknowledged that he did. He was asked whether he is in other circumstances asked to differentiate between different stressors and reference was made to the part of his second report that referred to the contribution made by the plaintiff's knee pain. He was asked to describe a percentage in relation to the contribution made by the abuse in the woodwork centre as opposed to the abuse in the car and home. Dr Tagkalidis acknowledged that the abuse that occurred in the school is 'significantly lesser' in impact, but his understanding was that the latter would not have occurred if it was not for the earlier abuse and he repeated his earlier evidence that it was, in his mind, a 'continuum'.[105]

137 In re-examination, Dr Tagkalidis confirmed his evidence concerning the 'continuum'. He was taken to various further parts of the plaintiff's evidence. He gave evidence that the whole experience is the abuse. When the trust with Palframan was ruptured and the overt abuse started occurring, the experiences were 'an entity in themselves' and that it was 'very artificial to separate off where they occurred'.[106] He considered it to make 'absolutely no sense at all' at a clinical level.[107]

138 He was asked about the comparison with the plaintiff's brothers and he considered that to be 'always a good comparison'. He considered it to be a 'basic but relevant comparator'.[108]

139 Dr Tagkalidis was asked concerning the breakdown of the plaintiff's methods of coping. He gave evidence concerning the dysfunctional earlier methods of coping and how they had broken down. He gave evidence that at the ages of 13 to 15 there were 'multiple strands of his sense of self'[109] and the rupture in his development together with a very powerful sense of shame had led the plaintiff to develop an external façade that had now fallen away. Given that loss, the plaintiff was now relying upon a 'patch up' of coping techniques to allow him to manage the negative emotional effects of the abuse. Dr Tagkalidis did not consider that the plaintiff could 'fundamental[ly] change the person that he is' or 'develop a healthier range of coping mechanisms'.[110] He considered that the plaintiff was much more vulnerable to stress and that his capacity is 'several rungs lower than would have been the case'.[111]

140 He was asked about the plaintiff breaking down again. Dr Tagkalidis gave evidence that clinically the position is not a cumulative one, but that if a breakdown does occur it was less likely that the plaintiff would regain function over time and be more likely to fall apart into anxiety, anger and other symptoms after each breakdown.

141 When he was at school, Mr Baldwin-Cole was known as Jason Bamford. He commenced at Geelong College in 1984 as an 11 or 12 year old in Year 7 and completed Year 12 in 1989.[112]

142 Mr Baldwin-Cole gave evidence-in-chief that he went into the senior school in Year 9. At that time, he became familiar with the House of Guilds, which he attended for woodwork classes in Year 10. He identified the main supervisors as Mr Egan and Mr Elliott. Palframan was also there. There were some other teachers there sometimes. He attended the House of Guilds for certain classes, during lunchtime and sometimes after school.

143 He believed that Palframan was a teachers' aide or assistant. Mr Baldwin-Cole said 'he was the same as the teachers, basically'.[113] Palframan used to help with projects and was knowledgeable about skills. Mr Baldwin-Cole completed various woodworking projects in the House of Guilds.

144 Mr Egan and Mr Elliott were often in the office at the House of Guilds on the right as you walked in. However, they were not always there. There were times where Mr Baldwin-Cole or he and other students were left alone with Palframan when there were no other staff there. Mr Baldwin-Cole described the woodworking room without being taken to any sketches or photographs. To me, Mr Baldwin-Cole's memory of the room was strikingly good.

145 He was in Year 9 in 1986. Palframan was often at the House of Guilds when he was in class or working on projects. Mr Baldwin-Cole described Palframan as 'creeping round'.[114] He described Palframan as breathing down the back of his neck and leaning over him while he was attending to projects. Palframan was close enough for Mr Baldwin-Cole to feel uncomfortable. Palframan would put his hand on his shoulder. Palframan also had a ruse whereby he would pretend to shake hands and then move his hand and touch Mr Baldwin-Cole on the penis. The touching occurred outside Mr Baldwin-Cole's clothing. Mr Baldwin-Cole also described Palframan cupping underneath the cheeks of his buttocks. He would also slide his arm around his shoulder and put his hand in onto Mr Baldwin-Cole's chest.[115] 'Usually' there was someone else there.[116] Mr Baldwin-Cole described the penis ruse having occurred on maybe half a dozen occasions and it having been 'creepy'[117].

146 Mr Baldwin-Cole tried to avoid the contact and to shrug Palframan off. Palframan would touch him on the hip. It would happen in front of other students. He saw the handshake ruse occur with other students as well. Palframan would invade Mr Baldwin-Cole's personal space and Mr Baldwin-Cole would be on guard. Mr Baldwin-Cole remembered Palframan going off with one or more students after school in his car which he thought was a bit odd. On the other hand, Mr Baldwin-Cole observed that Palframan appeared to have 'the trust of the school'.[118] Mr Baldwin-Cole said that Palframan 'was familiar around the place' and was 'making himself completely at home'.[119]

147 Mr Baldwin-Cole was asked about Mr Elliott who he described as funny, gentle, kind and sweet. He also described Mr Egan as very proper and very knowledgeable.

148 Mr Baldwin-Cole was asked about telling any teachers about Palframan and he said that he raised it with Mr Egan and with Mr Elliott. He said that he reported it later in 1987 when 'it got more intense'.[120] The touching became more deliberate and it was obviously not accidental. When giving this evidence, Mr Baldwin-Cole became visibly emotional and appeared to be in a mode of almost re-experiencing the events. Mr Baldwin-Cole said that he was scared and angry about Palframan as it was getting more deliberate and he was feeling pressured and trapped.

149 He first spoke with Mr Egan. The conversation took place near the bandsaw inside the front door near the stairs of the House of Guilds. Mr Baldwin-Cole described what he said to Mr Egan in general terms and, when asked to be more specific, described what he had said as 'he's grabbing us on the dick and being a sleaze'.[121] He was making the complaint on behalf of him and others, to which Mr Egan reportedly replied 'Oh, why would that bother you?'[122] Mr Baldwin-Cole said that he was 'a bit bewildered by his response because it was a fairly big thing' that he was raising[123].

150 After that, Palframan again tried to touch Mr Baldwin-Cole 'a few times'.[124] Within a month or so, he raised the matter with Mr Elliott. He said that Palframan has been 'groping us'. When pressed about exactly what he had said, Mr Baldwin-Cole said he had said something like 'you have to watch out for Bert because he will grab you on the dick'.[125] He said that he was clear about it. That conversation occurred in the quadrangle at the House of Guilds. He said that Mr Elliott gently laughed it off and said 'he's harmless, don't worry about him'.[126] Mr Baldwin-Cole could not remember the particular words that he said to Mr Elliott, but he considered himself to have made it clear.

151 The final time was again to Mr Elliott, in the woodwork room at the table on the left as you go in. Palframan was at the other end of the room and out of earshot. That conversation was similar. Mr Baldwin-Cole said that he told Mr Elliott that 'we were being groped and that Bert was being inappropriate and touching us'.[127]

152 Nothing changed after that, and a few months later Mr Baldwin-Cole wound back his attendances at the House of Guilds. He felt a bit stupid for having raised it. He said that he felt like he was on his own.

153 When he was in Year 11 he went to the House of Guilds occasionally. On one occasion, when he was in Year 11, Palframan tried to touch him again, but Mr Baldwin-Cole was vocal and shoved him away with both hands. Mr Palframan told Mr Baldwin-Cole's father that Mr Baldwin-Cole had been smoking in the toilets. Mr Baldwin-Cole thought that Palframan did this to protect himself.

154 In cross-examination, Mr Baldwin-Cole was asked about other teachers at the school, including Mr Lancaster and Mr McBride who was the head of house.

155 Mr Baldwin-Cole was asked about getting to know teachers. He said that he did not really get to know them when he was in Year 9. When he was in Year 10 he knew a couple of them. He did not approach any of them about what he had said to Mr Egan and Mr Elliott.

156 He was cross-examined about the actual or exact words used in his complaint to Mr Egan. Mr Baldwin-Cole said that he could not be precise about the actual words. He said that he was 'very clear in getting the message across',[128] but could not recall the exact words used.

157 It was suggested to Mr Baldwin-Cole that he had first told the school when he claimed against it in November 2020. Mr Baldwin-Cole said that he had told Mr Egan and Mr Elliott and then he had more recently made his claim.

158 As to the conversations with Mr Elliott, Mr Baldwin-Cole remembered the gist but again did not remember the exact words.[129] He remembers bolstering himself to say something. He said that he wanted to say something confronting that would ordinarily get a student into trouble. He can clearly remember getting his message across. He said he remembers his intention.

159 He was asked whether he knew that Mr Elliott had died in 2018. Mr Baldwin-Cole said that he did not know when Mr Elliott had died. It emerged that Mr Baldwin-Cole had learned of Mr Elliott's death after making his own claim.

160 It was suggested that he was mistaken about having spoken to Mr Egan and Mr Elliott. Mr Baldwin-Cole replied 'you're incorrect' and 'I absolutely had those conversations. ... There is absolutely no doubt in my mind'.[130]

161 It was suggested to Mr Baldwin-Cole that he would have gone to others at the school. He acknowledged that he did not. He said that he did not feel comfortable enough with other teachers. Of Mr Egan and Mr Elliott, he said 'they were right there'. He said that it was 'in front of them what was going on' and that was why he went to them. He basically got 'slapped down' and consequently removed himself from the House of Guilds.[131]

162 It was suggested to Mr Baldwin-Cole that there were other teachers supervising, and he said that he did not remember them there as much. It was suggested to him that there was always a staff member supervising and he said 'certainly not. That is incorrect.'[132]

163 Mr Baldwin-Cole clarified that Mr Egan and Mr Elliott were often present in the woodwork room or the office, but not necessarily when Palframan was touching him. On the other hand, he said that they 'could not have not seen it'.[133]

164 In re-examination, Mr Baldwin-Cole said that sometimes only Palframan was present in the woodwork room in the afternoons. Sometimes a teacher was coming in and out. In those times, Palframan was there as the supervisor.

165 Mr Baldwin-Cole was asked why he did not report it to other teachers. Mr Baldwin-Cole said that he felt powerless and he felt that the people he had reported to were in the best position to do something about it. He said that they had dismissed him like it was nothing. He did not raise it with anybody else because he did not want to get embarrassed or kicked out of the school. Ultimately, he said 'I was a kid'.[134]

166 He was asked about attending a counsellor retained by the school. It emerged that this had occurred on three or four occasions, seemingly a few months before Mr Baldwin-Cole commenced proceedings. He told that counsellor, whose name was Ryan, that he had complained to the teachers.

167 Ms Davis is a registered psychologist and has treated the plaintiff mostly fortnightly since 15 November 2019. She has seen him on 28 occasions, most recently on 5 August 2021. Her report was tendered in evidence.[135]

168 In examination-in-chief, Ms Davis confirmed that her treatment had endeavoured to assist the plaintiff to live as effectively as he can. She said that the sexual abuse had had a profound impact upon him at a critical development stage. Her diagnosis is post-traumatic stress disorder and generalised anxiety disorder. She said that the plaintiff has continued to be triggered throughout his adult life. He was constantly questioning his self-worth.

169 Ms Davis said that the plaintiff's symptoms had not especially varied. In her view, he has been 'severe' since she first saw him. She thought that his diagnosis was likely one for a lifetime. That was supported by the literature in the field.

170 She was asked about the extent to which the plaintiff had struggled to realise his potential. She believes that he would have achieved a lot more in life had the abuse not occurred. That was on the basis of what she had heard about him. She confirmed that he had presented as intelligent and articulate in therapy.

171 She was asked about the impact of the abuse upon the plaintiff's employment. She said that he had 'struggled enormously internally'. In her opinion, the plaintiff would have 'enormous difficulty' returning to work. She said that he faced a lifetime of therapy and 'there's no pill you can take for it'.[136] She was not optimistic that he would find work at any time soon.

172 Ms Davis confirmed that treatment was ongoing and would need to continue as the plaintiff continues to be triggered. She said that he was self-judging and has distorted thinking. She said that he had a deep sense of shame and guilt, which is not uncommon in abuse victims.

173 She said that he has had setbacks. He had reacted to cases in the media. Ms Davis gave evidence that he was very vulnerable to future breakdown.

174 In cross-examination, Ms Davis confirmed that early sessions with the plaintiff had touched upon his redundancy from Treasury Wine Estates. That had a significant impact upon him. She was asked whether he was angry concerning that event, and she said that she did not see him angry but saw him as devastated and sad. She said that his 'lifetime of struggle in the workplace' had culminated in redundancy.[137]

175 She acknowledged that the setbacks had included the legal case. It was suggested to her that his condition would 'settle' after the case was over. She said 'I don't know that it will actually' as he is 'triggered by other things too'.[138] She acknowledged that it 'might'.

176 The plaintiff's difficulties with travel were raised. Ms Davis said that there were numerous factors and travel was one of the 'significant ones'.[139]

177 She was asked about his positions and promotions in his employments, particularly with Diageo and Treasury Wine Estates. It was suggested that it amounted to a good career progression in the period 2005 to 2019. She acknowledged that it looked like that 'externally'. She said that he 'really struggled to take up those challenges' and that 'no one could see what was happening on the inside'.[140] She said that the 'crippling effect' was internal and that pursuing those positions had come at 'enormous personal cost'.[141] She said that the plaintiff had been trying to reach his potential, but inside he was hollow and struggling. She said that to the external eye he had appeared to be progressing professionally, but inside he had been 'crumbling and ... getting worse'.[142] She acknowledged that this was based upon what he had said to her in treatment.

178 She confirmed that she did not have vocational qualifications. She also confirmed that she had been suggesting strategies and planning for the plaintiff's future. She was asked whether there were psychological benefits in getting back to work and she agreed that was so 'in certain cases'.[143] She confirmed that she would encourage him to get back to work if she thought it were helpful. She could not exclude that he would return to work, but 'would be very concerned for him if he did'.[144] She was unable to say when he might return to work.

179 In re-examination, Ms Davis confirmed that she would be concerned if the plaintiff returned to work. She would be concerned about the severity of his symptoms and his difficulty in getting past them. She said that he had built a façade to help him cope, but burnt himself out and she doubted that he would be able to do that again. If he was triggered it could be devastating. In her view, his post-traumatic stress disorder and the effect of trauma is 'very entrenched'.[145] She said that she was concerned for his welfare.

180 She did not believe that he was anywhere close to holding down work. She thought that damage in that endeavour would 'take him back immensely'.[146]

181 She said that he struggled to be alone, he struggled with travel and terrible thoughts would 'come at him'. She said that he had adopted a combative approach in the workplace in order to 'gain control'.[147] That had involved cutting people down and jealousy. She said that the plaintiff had been jealous of people who had not suffered as he had. She was concerned that symptoms and difficulties of that kind would re-emerge if he was to return to work. She said that he 'still has a long way to go'.[148]

182 Mr Egan is a retired school teacher called by the defendant to give evidence. He was to turn 85 years of age five days after the day on which he gave evidence. He retired from teaching in December 1997. He was brought up on a farm outside Portland. He commenced teaching in 1957. It is apparent that he taught in the State system for a period. He taught art and creative studies. He was invited to teach at Geelong College and commenced there in 1972. He stayed there until he retired.

183 In evidence-in-chief, he described the new House of Guilds opened in 1980. After about two years, it became open to membership by members of the community. It was open to students of the College and students from other schools. In terms of equipment, it had 'everything'.[149] It was open from 9:00am until 6:30pm in the summer and 9:00am until 6:00pm in the winter. It was also open on Saturday and Sunday.

184 Mr Elliott was the warden. Mr Egan taught Mr Taylor in Year 12, and he later became a fellow teacher at the school and also warden of the House of Guilds.

185 Mr Egan confirmed that there was a roster for teachers to attend the House of Guilds. That occurred every day after school until closing time, and on weekends. Mr Egan was part of the roster. The rostered teacher would open and shut the House of Guilds, making sure that the lights were on and the windows were open. There was supervising of basic operations in terms of use of the machinery, sharpening tools and the like.

186 The number of people who attended the House of Guilds out of hours was 'totally unpredictable'. Sometimes Mr Egan could be there on his own for an hour or two, but on a good day five or six members of the public would be present.[150]

187 Mr Egan recalled Palframan, though he could not remember when he became a member of the House of Guilds, noting only that he 'turned up one day'.[151] Although he might recognise Palframan if he saw a picture, it is only 'a vague memory after all this time'. When asked how often Palframan attended, he said 'at the most three to four times per week, perhaps'. [152] Mr Egan remembered other community members.

188 Mr Egan did not have any concern about Palframan with the students: 'not at all'. He did not remember what projects Palframan was involved with. Palframan was 'a very quiet fellow'.[153]

189 Mr Egan was asked about a student named Jason Bamford. Mr Egan said that the surname 'rings a bell', although he could not 'place the student'.[154]

190 Mr Egan was asked whether any boy had made a complaint to him concerning being the subject of sexual assault or being touched on the 'dick' and he replied 'no'.[155]

191 In response to the suggestion that he had dismissed such a complaint, he responded 'frankly, I'm hearing this for the first time'. If such a complaint had been made, he would have taken it 'very seriously.'[156] He said that he would have taken it to the next senior person and then 'straight up the line'. He said that if such a complaint was made, he would not have let Palframan 'into the building'.[157]

192 Mr Egan was cross-examined at some length. He was asked about having attended staff meetings and he confirmed that he had attended 'plenty'.[158] He was also asked about positions that he had held and his office at the House of Guilds. He had an office in an open area on the mezzanine level.

193 Mr Egan confirmed that the primary responsibility of the school and its teachers is the care of students. He said that he followed the doctrine 'in loco parentis'. He said 'once a child enters the school, through the school fence or whatever, we are responsible'.[159] He confirmed that it was the responsibility of the supervising teachers at the House of Guilds to ensure that students did not come to harm. He said it was 'taken for granted rather than spelt out'.[160]

194 In respect of a Year 7 or 8 student who had been looking for direction in their work at the House of Guilds, he confirmed that such a student could speak to him, or Mr Elliott and, when asked in respect of Palframan, said 'probably'. Similarly, in respect of supervision, he was asked whether such a student could ask him or Mr Elliott and he said 'yes', and in respect of Palframan he said 'probably', although he could not remember that happening, 'in particular'.[161]

195 He was asked about the process of Palframan assisting a student and he confirmed that there was no formal process and it was just 'part of the flow'. He did not know whether there was a vetting process for community members, but presumed that it was simply name and address and payment of a fee. He did not know that Palframan was an honorary member.[162]

196 Mr Egan gave some evidence concerning his duties in 1980 and those of Mr Elliott. He was asked about teachers who might be rostered at the House of Guilds in the period 1988 to 1990 and he referred to himself, Mr Elliott, Mr Wells, Mr Smith, Mr Lancaster, Mr Andrews and Mr Taylor. He confirmed that they were all meant to be supervising from time to time. When rostered they would spend time in various parts of the House of Guilds. They would possibly duck out to their own rooms at times and he confirmed that he did that himself. He had no specific memory of those occasions or for how long, although he said that such a thing would never happen for 20 minutes.

197 Mr Egan was asked whether Palframan may have helped students and he confirmed that he might have. He also confirmed that Palframan was potentially there in the House of Guilds on his own at times. He was asked about the 'nook' and confirmed that it may not have been able to be seen from the warden's office.

198 Mr Egan was asked further questions concerning Palframan. He said that he did not remember Palframan coming up to him, which he explained by saying 'he wasn't a conversationalist'. To Mr Egan, Palframan was just another member of the public. Of himself, Mr Egan said 'I'm the sort of person who accepts people as they are'.[163]

199 Mr Egan was asked about what was said about Palframan in the Pegasus newsletter in 1987.[164] He said that it was beyond his memory, but disagreed with the report that Palframan had been 'of great assistance'. He described him as a 'general dog's body' and could not remember him working on his own projects. He said that he 'wouldn't have recommended him to anyone', as Palframan was not a tradesman or skilled. He was just 'in the room involved with this and that'.[165]

200 Mr Egan was asked about whether Palframan had access to the phone in the office and said that had not occurred while he was there. He said 'I run my own ship'.[166] He said that some members were a bit free and easy with the tools. That could apply to Palframan. In respect of himself, he said that he ran the place when he was there. In respect of Palframan, he said that he did not have 'leadership quality' though he 'may have' given advice or instructions to students.[167]

201 Mr Egan was asked whether Palframan had keys to the House of Guilds and he said that he would be 'surprised'. It was suggested to him that evidence had been given of Palframan locking up and the evidence surprised him.[168]

202 Mr Egan was asked about students being driven home. He said that once a student was out of the door he did not think any more of it. He said that he was usually involved in writing notes or packing up. He was asked about parking on school grounds and he said that he would not have allowed it.

203 He was asked whether he was surprised that Palframan had attended a music camp and he replied 'yes'. He referred to his 'vague, vague memory'. He said that he was very surprised to learn this, but that it was possible.[169]

204 He was asked whether he had known that Palframan had handed out business cards to students. He described the practice as 'extremely odd' and said that he had not known about it. He asked, rhetorically: 'why would you want to do it?'[170]

205 Mr Egan was asked about the attitude and approach to students being touched. Mr Egan said that he was 'a very naïve boy' who had grown up on a farm and had been totally unaware of 'male to male or human sexual, call it disorder' until he was about 30 years of age. He then referred to a previous school that he had been at where a member of the physical education staff had interfered with boys and later served jail time. That was the first time he had become aware that staff could be involved with students in such a way. He 'knew it could be possible'.[171]

206 Mr Egan was asked whether there was any discussion of such an issue at Geelong College and he said 'no'. He described Geelong College as having had 'a very good run'. He did not find himself involved in anything of that kind in his entire career. He said 'this side of life didn't appear as part of me'.[172]

207 Mr Egan was asked about Geelong College having admitted to many, many sexual assaults having occurred and he said that he had been totally unaware of it. He said that it was a surprise to him. He said that very good teachers were involved. He described his time at Geelong College as a 'grand time' and added that 'this aspect of life wasn't part of me'.[173]

208 Mr Egan was asked whether the staff had been told to watch out for abuse of students and he did not remember a staff meeting at which anyone had said anything of that kind. He knew that in boarding schools there had been the 'occasional interruption in the good way of life', which he seemed to suggest 'goes back 2000 years'.[174]

209 Mr Egan was asked about Mr McPherson, Mr Longley and Mr Cameron. He said that they were at the prep school. It seemed that he only heard about that later. He did hear at some later time about David Whitford.

210 Mr Egan was again asked about whether there was any guidance of staff in respect of dealing with such complaints and he said that there was not any that he could recall. He said that 'it was a different world then in this regard from today'.[175]

211 It was suggested to Mr Egan that there had been 26 staff who had been accused of sexual interference with students at Geelong College. Mr Egan said that he had never heard such statistics at all. The suggestion in his evidence was that he thought that such a thing could occur in the public school system but he was surprised to hear that it could happen at Geelong College. It had never come up in his teacher training.

212 Mr Egan confirmed that there had been no policies or plans in place at the time in respect to such things at Geelong College. He acknowledged that it was possible that it could occur but it was hard for him to believe that it had been going on 'under your eyes'. He said: 'I look for the best in people, not the worst'.[176]

213 As to his memory, Mr Egan said that he remembers the good times and the good things which occurred during his tenure at Geelong College. He confirmed that most of the day-to-day stuff was 'just gone'.[177]

214 Mr Egan was asked whether he could remember the plaintiff. He said 'no, not at all'.[178] He could remember that there were some boys at the school with the plaintiff's last name. He then gave evidence concerning his involvement as a house master.

215 Mr Egan was asked concerning Peter McCann. He remembered Mr McCann and that he had a 'brain injury' owing to a difficult birth. He thought that Mr McCann might have attended the House of Guilds. He did not remember any teaching responsibilities that he had in respect of Mr McCann.[179]

216 Mr Egan was taken in some detail to documents concerning the tuition of Mr McCann.[180] The documents referred in name to Mr Egan, but also to Palframan. The documents identified Palframan as having been involved in the tuition of Mr McCann in woodwork. It was a lengthy passage of cross-examination. The substance of Mr Egan's response was that he was 'absolutely surprised' to see Palframan's name referred to in the documents and could not remember the events himself.[181] He had been adamant that Palframan would not be involved in such things, but the documents to which he was taken suggested otherwise. Ultimately this was not something Mr Egan was able to explain satisfactorily.

217 From that point onwards, Mr Egan seemed shaken in his evidence. He was plainly trying to reconstruct events in order to take account of the documents that he had been shown. I should say that Mr Egan was a polite and well-mannered gentleman dressed in a collar and tie. He had an old-fashioned manner, totally in keeping with his age and professional life. With that said, it became apparent that his memory of events, now more than 30 years ago, was a rather broad one. I do not regard that as surprising. The cross-examination by reference to the documents showed the quite understandable effects of time upon his memory. Towards the conclusion of the sequence of cross-examination relating to the documents from 1990, Mr Egan exclaimed 'this has amazed me'.[182]

218 Mr Egan was asked when he was first asked to recall these events of more than 30 years ago and he said that that had only occurred within the last few days.[183] That included in respect of the conversation suggested to have occurred with Mr Baldwin-Cole. Senior counsel put the substance of the suggested conversation with Mr Baldwin-Cole again and Mr Egan said that he could not recall any student having been interfered with, but that if they had a hand put on them he would presume 'that was on [the] shoulder or somewhere'.[184] It was suggested to Mr Egan that Mr Bamford had been specific and described the touching with reference to a word such as 'dick' or 'cock'. Mr Egan repeated that he had no recollection of any such conversation but that he was sure that he would have acted on it immediately.[185] Evidence to that effect was given by Mr Egan at various points during the cross-examination.

219 He was asked whether it was possible to remember a single conversation of 30 years ago and he conceded that it was 'virtually impossible'. He also confirmed that the fact that he did not have any memory of it did not mean that it did not occur.[186]

220 On the other hand, Mr Egan said that if the words had been expressed in the manner described it would have shocked him if he 'had taken it on board immediately I might have been distracted or doing something, I don't know'. If the words had been spoken clearly, he 'would have acted immediately'. He said 'I would have processed it if I was aware it was said to me'.[187]

221 Mr Egan said 'I hadn't been thinking about these sort of things for a half a century'.[188] He noted having 'heard of other staff members and so on and so on'. It later emerged that this was a reference back to the interference with students by the physical education teacher.[189]

222 Mr Egan again confirmed that Geelong College had not given any guidance about how to deal with such incidents.[190]

223 When Mr Egan was asked whether he had not known how to respond to such a report from a student, he said 'I'm a man' and at that stage of his career he had 'known that this sort of thing could occur'. Immediately prior to that, Mr Egan appeared to concede that it was 'probably fair' to say that he might have responded by saying, among other things, 'why would it bother you'. In this evidence, he referred to Palframan as 'almost a simple nonperson' and he might have said that because he did not consider that Palframan was capable of such a thing.[191]

224 Demonstrative of the attempts by this point made by Mr Egan to reconstruct matters that he could not remember, he stated 'I can't put this together in my head'.[192] He conceded the possibility that his memory may not have been as precise as he would have liked it to be.

225 In re-examination, Mr Egan agreed that if a boy had indicated that someone had attempted to grab his 'dick' or to assault him, he would remember it. Mr Egan said that it would be the first time that a student would have spoken to him like that and he would have followed it up in some way or another.

226 Mr Egan remembered the McCanns, including Peter McCann. He again gave evidence that the documents that he had been shown concerning Peter McCann were 'all new to me'.[193] He was again struggling to reconstruct how these long-forgotten events might have come about. He confirmed that he was surprised at Palframan's involvement with Mr McCann. He said that he did not know Palframan's background. He would have been surprised if Palframan was in education. He described him as a 'quiet, uninvolved person'. He had never heard of Palframan attending a music camp.[194]

227 Mr Egan was asked about the previous school where the teacher had been interfering with students involved with surfing. He confirmed that he had learned about that about two or three years after he left that school. That seems to have been either prior to him being at Geelong College or shortly after he started there. He remembered that he learned of it about three or four years after he had left that school. He made reference to having stopped at a house inhabited by a single physical education teacher in Ocean Grove. The house had five boys under the age of 12 in it. He said these things 'jump out at you' but that 'we didn't discuss it at the time'.[195]

228 Mr Egan was asked about 'in loco parentis' and confirmed that he had understood that to end once the student was off the school grounds, although he then qualified his evidence as follows -

Well, if you're a common sense person, in your movements around the town, you make sensible decisions that when you see students outside the school ground, whether they're behaving this way or that way, and I have been prone to tell students to please ride on the left-hand side of the road.[196]

229 Each of the plaintiff's brothers gave evidence. Broadly speaking, their evidence tended to confirm the plaintiff's evidence concerning his early life, sporting promise, evident change around the time of the abuse, later disclosure of the abuse and its past and present effect on the plaintiff. The elder brother described the plaintiff's ordeal relating to sleep as 'bloody awful'[197] and the middle brother said that the plaintiff is a 'shell of what he could have been'.[198]

230 I should add that the physical resemblance between the brothers and the plaintiff was as might be expected. More striking, however, was the relative composure of the brothers compared with the raw distress exhibited by the plaintiff when giving evidence. The comparison tended to underline the evidence later given by Dr Tagkalidis and Ms Davis concerning the effect of the abuse upon the plaintiff's emotional state and regulation.

231 There was cross-examination of the middle brother concerning his long involvement in sports administration. In that, he confirmed that in the early 90s the suitability of officials had been considered, and they had been registered and educated in 'responsible management', which had included written protocols or procedures.[199]

232 The plaintiff also called two past workmates, Paul Ennis and Sarah Parkes. Mr Ennis worked with the plaintiff at Diageo. The plaintiff had a problem with travel, was controlling and did not take criticism well. Ms Parkes was the plaintiff's manager at Treasury Wine Estates. She said that he was 'like my third child'.[200] She described his reaction to criticism as 'unbalanced'. The plaintiff also had problems with travel and was facing a formal warning before he was retrenched. He reacted to the retrenchment very badly and with 'absolute anger, swearing'.[201] Each of them was asked some questions and gave evidence about sales and management roles generally.

233 The plaintiff also called a sequence of former students of the school concerning abuse perpetrated by certain teachers in the late 1960s or early 1970s. Most or all of those instances have been reported to the school in more recent times and the school has provided letters of apology.[202] The plaintiff tendered records relating to the teachers concerned, including Mr McPherson.[203]

234 Ross Kearney gave evidence concerning actions by Mr McPherson in which he felt uncomfortable. He and another boy attended the then headmaster of the prep school, Mr Watson, and complained.

235 Joel Gladman attended the school between 1987 and 1992 and gave evidence of Palframan being around the House of Guilds and having attending a music camp.

236 Andy Hudson attended the school between 1986 and 1991. Palframan was often at the House of Guilds and handed out business cards to the boys with his name, address and telephone number on them. Mr Hudson knew that Palframan was not a teacher. Palframan was a volunteer and 'kind of part of the furniture'.[204] There was 'almost always' a teacher supervising in the House of Guilds.[205]

237 Karen Pegg was a community member of the House of Guilds for about 18 years and was there occasionally in the late 90s. There was a teacher on duty when classes were on; occasionally the teacher might be elsewhere. She gave evidence that someone was there the 'vast majority of times'[206] and that she had seen nothing untoward with Palframan.

238 Mark Thompson is a forensic accountant. He prepared two reports, which were tendered, as were related documents.[207] He gave evidence concerning his calculations and the assumptions underlying them.

239 The plaintiff tendered certain police records relating to Palframan, which suggested that he was convicted of indecent assault on 2 March 1999 and may at that time have been serving sentences. Those convictions did not relate to the offending upon the plaintiff. The records suggest that police enquiries of the school did not reveal any records relating to Palframan. The records suggest that Palframan died in 1999.[208]

240 The defendant called Robert Salmon, who was a student at the school between 1990 and 1995. He praised both Mr Elliott and the House of Guilds. He gave evidence that that there had 'always' been a supervisor present. He had seen nothing of concern relating to Palframan at the time.

241 Raymond Lancaster was a teacher at the school from 1977 to 1991. He is now 91 years of age. He did not recall the plaintiff. He gave evidence that there was a roster relating to the House of Guilds and there was 'always' someone on duty. He recalled Palframan and never saw anything of concern. He was 'really surprised' when matters later came up.[209]

242 Philip Taylor was a student at the school between 1971 and 1976 and then a teacher at the school and warden of the House of Guilds from 1991. He is still a teacher at the school. He confirmed that there was a roster system when he was warden. He did not recall anything inappropriate concerning Palframan.

243 The defendant filed lengthy written submissions on both liability and quantum, together with a reply to the plaintiff's written submissions. I will not repeat all aspects of those submissions.

244 There was no issue but that the defendant owed to the plaintiff a duty to take reasonable care that he not be injured while in the care of the school.

(a) there was no basis for a finding of any direct or vicarious liability of the school for the actions of Palframan;

(b) the defendant did not breach the duty of care owed to the plaintiff;

(c) further, the scope of the duty owed by the defendant to the plaintiff did not extend to the conduct of Palframan away from the school, in Palframan's car, home, or, on one occasion, the plaintiff's home;

(d) by reason of the above, there should be an apportionment or 'reduction' of any damages owed by the defendant to the plaintiff in the order of 65% to 75%;

(e) it should not be accepted that the plaintiff's career and earning capacity has been disrupted to the degree alleged by reason of his psychiatric injury; and

(f) more generally, any award of damages should be 'reasonable and proportionate'.

246 In this regard, senior counsel for the defendant addressed the evidence concerning the arrangement by which the plaintiff was driven home from the House of Guilds by Palframan and contended that there was no evidence that Mr Elliott was 'aware' of these actions.[210]

247 More generally, it was contended that Palframan had 'befriended the parents' who had given him permission to drive the plaintiff around and the plaintiff's mother had known that he was in Palframan's home.[211] Senior counsel referred to the fact that each of the parents were teachers and asked, rhetorically, whether it could be said that they were not aware of the 'arrangement'.

248 In respect of the evidence of Mr Baldwin-Cole, senior counsel referred to the fact that Mr Elliott is now deceased and said that there was unfairness involved as it was not possible to rely upon his evidence. In that regard, senior counsel referred to the reasoning of McHugh J in Brisbane South Regional Health Authority v Taylor.[212]

249 In respect of the confinement of the scope of the duty of care, senior counsel referred to authorities in which it was said to have been determined that the duty of care of a school 'stops at the boundary'.[213] The actions of Palframan in his car, home and the home of the plaintiff were said to be 'totally outside the scope of any duty imposed on the school'.[214]

250 Senior counsel contended further that the plaintiff had not discharged his burden of establishing the alleged protocols or procedures that should have been in place in order to avoid the damage suffered.[215]

251 It was said, in substance, that the system implemented by the defendant was reasonable and sufficient to discharge its duty of care. Senior counsel pointed to the system of supervision, rostering and 'oversight'. It was said that such a 'system' was consistent with the 'standards of the day'.[216] In that regard, senior counsel referred to the later introduction of the Working with Children Act 2005 (Vic).

252 As to the plaintiff's reliance upon the reporting of molestation to Mr Egan and Mr Elliott by Mr Baldwin-Cole, it was said that Mr Baldwin-Cole was not clear as to what he had said in these conversations. It was said that it could not be known exactly what he was saying because of the 'elliptical way' in which he had conveyed any information to Mr Egan or Mr Elliott.[217]

253 As to the evidence of Mr Egan, it was said, in substance, that the Court should accept the sincerity of Mr Egan concerning the seriousness with which he would have taken any complaint said to have been made. It was said, in substance, that the suggestion that Mr Elliott and Mr Egan had both brushed off Mr Baldwin-Cole was a 'highly unlikely scenario'.[218]

254 As to the evidence concerning 'other offenders' such as Longley, Cameron and McPherson, the offending mostly related to the junior school and was '15 to 20 years beforehand'. It was said to be 'entirely different circumstances'.

255 In respect of the issue of vicarious liability, it was said that Erlich v Leifer[219] was a different case and reliance was placed on the reasoning of the High Court in Sweeney v Boylan Nominees Pty Ltd.[220]

256 The submissions on causation covered much of the ground covered earlier concerning the scope of the duty of care. An essential point was said to be that the responsibility of the school for the child 'ends at the school gate'. It was submitted to be 'radical' to suggest otherwise.[221]

257 Counsel addressed damages and confirmed that if Part VB of the Wrongs Act 1958 (Vic) (the 'Wrongs Act') applies then the calculations proffered in the evidence of Mr Thompson would not exceed the 'caps'. Nor would general damages likely exceed the 'cap'. Practically, the only issue relating to Part VB was the applicable multiplier.

258 Counsel submitted that Part VB does apply to the present case and referred to sub-s 28C(2)(a) of the Wrongs Act and the decision of the Court of Appeal in State of Victoria v Thompson.[222] Counsel also referred to Zorom Enterprises Pty Ltd v Zabow.[223]

259 The defendant contested the notion that the plaintiff's 'trajectory' had been affected by the abuse. It was submitted that the plaintiff's 'trajectory' post university and in the period between 2005 and 2019 had been 'impressive'. As to the 90s, counsel referred to the similarly 'non-linear' nature of the eldest brother's career.

260 Counsel made further submissions concerning the plaintiff's employment history, particularly at Treasury Wine Estates. Counsel referred to 'personality factors' and the evidence given on the one hand by Dr Tagkalidis and on the other by Ms Parkes.

261 Counsel submitted that the high earnings scenario proposed by Mr Thompson was 'highly speculative'. She submitted that the earnings achieved by the plaintiff at Treasury Wine Estates were a surer guide. Counsel spoke to alternative scenarios proposed by the defendant, and also addressed vicissitudes and any discount to be applied by reference to Malec v Hutton.[224]

262 As to retirement age, counsel referred to some of the data admitted into evidence and contended that the plaintiff may have worked to less than retirement age.

263 As to general damages, counsel referred to other cases described as relevant to the 'range' and submitted that an award in the range of $260,000 to $300,000 may be appropriate.

264 Finally, reference was made to the abuse which occurred outside the school and it was submitted that a reduction in damages of 65% to 75% was appropriate.

265 The plaintiff also filed lengthy written submissions together with a written reply. Again, I will not repeat all aspects of those submissions.

266 Senior counsel for the plaintiff commenced with general observations. She referred to the fact that the school was 'in loco parentis'. In respect of the risk of injury, it was not necessary for the school to foresee the precise injury.

267 Senior counsel noted the issue of 'scope'. However, the teachers understood that they had a duty and sought to discharge it by a system of supervision and rostering. That was the response to the risk.

268 Senior counsel referred to the fact that the abuse was admitted. It commenced in 1988, shortly after the plaintiff commenced attending the House of Guilds. It started with inappropriate touching that was invasive and frequent and escalated thereafter. Senior counsel emphasised the evidence of the plaintiff concerning the 'cycle', 'rhythm' or 'process' of abuse. There was, as Dr Tagkalidis stated, a 'continuum'. Senior counsel contended that the teachers concerned either did not observe the abuse or must have seen it and not comprehended the meaning of it.

269 Senior counsel referred to the endeavour of the defendant to shift responsibility to the parents. This was referred to as a 'delimiting argument' unveiled at the 'eleventh hour'.[225] It was submitted that the school's duty of care could not be displaced by the consent of a parent.

270 Senior counsel developed her submissions by reference to Erlich v Leifer. She sought to draw parallels between observations made concerning the evidence in that case and the present.

271 As to the defendant's submission that it was necessary to have adduced expert evidence concerning the response to the risk, that was submitted to be unnecessary. It was plain enough, it was submitted, that after the complaint made by Mr Baldwin-Cole Palframan ought to have been removed from the House of Guilds or 'watched like a hawk'.[226]

272 Senior counsel referred more broadly to the history of abuse of students at the school. It was submitted that the school knew or ought to have known of the risk presented by Palframan at the House of Guilds.

273 In that regard, senior counsel referred to a lengthy list of features of Palframan's presence at the House of Guilds, including the regularity of his presence, his involvement with and assistance of students, the fact that he was an honorary member and the assistance provided by him to Peter McCann.

274 More directly, however, it was submitted that if the Court were to accept the evidence of Mr Baldwin-Cole, it was 'game over' in respect of the issue of negligence.[227]

275 Senior counsel referred to aspects of the evidence given by Mr Baldwin-Cole. She contended that his evidence should be preferred over that of Mr Egan. Mr Baldwin-Cole was said to have been clear and honest in his evidence and to have made appropriate concessions. She referred to some of the detail in his evidence.

276 By contrast, senior counsel submitted that the memory of Mr Egan had been exposed as incomplete. She said that Mr Egan presented as naïve and conceded that he probably would have used the words attributed to him by Mr Baldwin-Cole.

277 Senior counsel submitted that it was highly likely that Mr Egan had forgotten the exchange. She also referred to what she described as Mr Egan's concession in evidence that he had become aware of abuse while at another school and yet had evidently not reported that to the school involved.

278 Senior counsel then referred further to the evidence concerning abuse involving teachers at the school, particularly Mr Longley, Mr McPherson and Mr Cameron. Detailed submissions were made in respect of those incidents of abuse.

279 Senior counsel then moved to the issue of supervision and rostering at the House of Guilds. It was emphasised that the school had recognised 'that they do need to supervise', yet there were clearly instances in which 'teachers were not present'.[228] The system had to have been inadequate, as there was so much abuse.

280 Senior counsel submitted that, in any event, the school was vicariously liable for the abuse perpetrated by Palframan. She referred to principles arising out of Prince Alfred College[229] as well as other authorities. It was submitted that Prince Alfred College leaves vicarious liability open in situations 'like' employment.

281 As to causation, senior counsel said that there was no evidence of other causal factors and that defendant's submission concerning the parents was a 'red herring'.[230]

282 Submissions followed concerning the manner in which the features of the abuse were said to be 'inextricably entwined in the plaintiff's own mind'. Reference was also made to the evidence of Dr Tagkalidis and it was said that the defendant had not led evidence to support the contention of 'divisibility'.[231] There was said to be no rational basis to apportion either the duty or the causal potency of the acts concerned.

283 General damages should be assessed in the 'high 300s' or 'probably higher than that'. In that regard, senior counsel referred to the plaintiff's presentation in evidence, intrusive thoughts and nightmares as a consequence of the abuse. The abuse was said to have been 'catastrophic' for him.[232]

284 As to economic loss, reference was made to the plaintiff's stable family and brothers as well as to his 'innate intelligence'. It was submitted that the plaintiff had succeeded in his career until he had fallen apart. That had demonstrated his ability. In substance, the plaintiff relied upon submissions made in writing based in the scenarios addressed by Mr Thompson.

285 As to Part VB of the Wrongs Act, it was said that s 28C(2)(a), properly construed, excluded its application.

286 It was submitted that there ought to be no discount for vicissitudes for the past and that any discount for the future should be 'modest'. It was said that there was no evidence to support any discount by reference to Malec.

287 It was submitted that, generally speaking, the plaintiff was credible, genuine, believable and forever and irreparably damaged and should be compensated accordingly.

288 Senior counsel for the defendant made a sequence of brief points, including that the basis for an apportionment as between the school and parents was said to have arisen out of the cross-examination of Dr Tagkalidis.

289 The first way in which the plaintiff advanced his case against the defendant was to the effect that the school should be vicariously liable for the abuse perpetrated upon him by Palframan.

290 In that, the contention of the plaintiff was, I have noted, that the features of the relationship between Palframan and the defendant were so close and numerous as to make it, in effect, just to impose a vicarious liability upon the school. That was said to be so, albeit that the relationship between the school and Palframan might not formally be thought to be one of the 'traditional' relationships in respect of which vicarious liability would ordinarily be imposed.

291 The plaintiff submitted that the law has been in a state of recent flux, or 'development', by reason of 'childhood abuse claims'. It was said that the reasoning of the High Court in Prince Alfred College, which was itself such a claim, provided a 'framework' within which a finding of vicarious liability might presently be made.

292 In that regard, reference was made to aspects of High Court's reasoning in Prince Alfred College, particularly the following -

Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the "occasion" for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.[233]

293 In this general connexion, emphasis was given to other cases that have grappled with the issue in one way or another, both in Australia and in the United Kingdom, and particularly the recent decision of A & B v Bird.[234]

294 The defendant did not really contest the proposition that there were a series of links between the school and Palframan, and I accept the evidence to that general effect, particularly the evidence concerning -

(a) the statement in the school magazine, Pegasus, in 1987, to the effect that Palframan was helping to run the House of Guilds;

(b) Palframan's instruction of Peter McCann in woodwork and even report writing in respect of Mr McCann's progress in and from about 1990, albeit that it appears that he was to be paid for his efforts directly by Mr McCann's parents;

(c) Palframan's regular presence at and involvement in the House of Guilds such that some witnesses referred to him as, in effect, part of the 'fabric' of the place;

(d) Palframan's relatively free interaction with both staff and students while he was at the House of Guilds, including involvement in the giving of assistance to students; and

(e) in the latter regard, Palframan's occasional involvement in the supervision of students in the House of Guilds.

295 In my view, however, the effect of that evidence should not be overstated. Whilst the plaintiff and some other witnesses gave evidence that they had thought that Palframan was a 'teacher'; other witnesses gave evidence of knowing that he was not a teacher. I do not accept that the defendant generally held Palframan out as a teacher of the school to those attending the House of Guilds.

296 I consider the more likely position to have been that, for his own purposes, Palframan endeavoured to infiltrate the operations of the House of Guilds and perhaps the school more generally as much as could be achieved by an outsider.

297 Such a position is consistent with much evidence given at the trial, and would explain Palframan's role with Mr McCann, his presence at a few meetings of staff, his presence at a music camp, his involvement in assisting and perhaps occasionally supervising students at the House of Guilds, his parking in and around the House of Guilds, his occasional use of the telephone there as well as his occasional access to the keys to the House of Guilds.

298 However, none of the above means that Palframan should be taken to have been or to be 'akin' to an employee of the school.

299 In that regard, and, to me, significantly, with the possible exception of the distinct role in respect of Mr McCann, there was no evidence that any of the rest of the above took place by reason of any formal direction or assignment given by the school headmaster or management of the school. Nor does it seem that Palframan was ever assigned a professional title, paid by the school, formally assigned or supervised by a superior from the school or that the school ever maintained a personnel or any other form of 'employment'-style file in respect of him.

300 In this context, I do not accept that the reasoning and passages in Prince Alfred College relied upon by the plaintiff may be taken to provide a 'framework' by reference to which the present circumstances may be said to found a finding that the school is vicariously liable for the abuse perpetrated by Palframan upon the plaintiff.

301 In Prince Alfred College, the perpetrator was an employed boarding housemaster, and the passage quoted above refers to and is premised in a relationship of employer and employee. Even in that context, however, a real issue arose as to the basis upon which it might be found that Prince Alfred College ought be found vicariously liable for the criminal acts of its employee.

302 The point made in the passage quoted, and the reasoning in Prince Alfred College more generally, is that even in respect of a relationship of employer and employee the fact that the employment provides an occasion for the commission of a wrongful or criminal act is insufficient to attract vicarious liability. Something more is required. That is, a 'special role that the employer has assigned to the employee' and 'position in which the employee is thereby placed vis-à-vis the victim'.

303 In my view, the presence of a relationship of employer and employee is a necessary intermediate step or foundation in the reasoning of the High Court in Prince Alfred College. I do not read that reasoning as supporting any proposition to the effect that the intermediate step may be removed, and a vicarious liability for the criminal acts of another imposed, merely by searching for what might in general terms be described as being a 'special role' to be discerned by reference to a multifactorial analysis untethered to any distinct, assigned or formal relationship between the parties.

304 As I have noted, in address the defendant relied upon the earlier High Court decision of Sweeney v Boylan Nominees Pty Ltd,[235] in which the proposition that vicarious liability should be extended to an independent contractor was rejected. In that regard, the plurality stated relevantly as follows -

[26] But the wider proposition that underpinned the argument of the appellant in this case, that if A "represents" B, B is vicariously liable for the conduct of A, is a proposition of such generality that it goes well beyond the bounds set by notions of control (with old, and now imperfect analogies of servitude) or set by notions of course of employment.

[27] These bounds should not now be redrawn in the manner asserted by the appellant. Hitherto the distinction between independent contractors and employees has been critical to the definition of the ambit of vicarious liability. The view, sometimes expressed, that the distinction should be abandoned in favour of a wider principle, has not commanded the assent of a majority of this Court.

[28] In Scott, the majority of the Court rejected the contention that the owner of an aircraft was vicariously liable for the negligence of the pilot of that aircraft if the pilot operated the aircraft with the owner's consent and for a purpose in which the owner had some concern. The argument that "a new species of actor, one who is not an employee, nor an independent contractor, but an 'agent' in a non-technical sense" should be identified as relevant to determining vicarious liability, was rejected.[236]

305 In my view, that passage of reasoning is inconsistent with any proposition of the general kind advanced by the plaintiff in the present case, and sits consistently with Prince Alfred College if the reasoning in that later case is to be understood in the manner outlined above.

306 In addition, it would be incongruous if it were to be the position that the reasoning in Prince Alfred College were taken to support the imposition of vicarious liability on the present defendant for the criminal acts of a non-employee such as Palframan, yet the effect of the reasoning in Sweeney were that no vicarious liability is to be imposed in respect of the non-criminal acts of an independent contractor undertaken with the general authority of the principal.

307 What I have said should be sufficient to make clear that by reason of the present state of High Court authority, in my view the contention that the defendant should be vicariously liable for the criminal acts of Palframan must be rejected.

308 I am, however, conscious that the plaintiff relied in argument upon further authorities, most particularly, as I have noted, the decision of the Supreme Court of New South Wales in A & B.

309 In A & B, Schmidt AJ noted that the reasoning in relevant cases in the United Kingdom does not accord with that in Prince Alfred College. Her Honour nonetheless considered that the facts in that case (which were otherwise found to be sufficient to support the finding that Mr Bird was an employee of the corporate entity concerned) were sufficient to engage 'the Australian principles'.

310 With respect, for the reasons identified, I doubt the correctness of the relevant passage of reasoning in A & B. Among other things, it is not obvious that her Honour was referred to Sweeney, as it is not referred to either in the passage of reasoning concerned or the very lengthy list of cases cited.

311 In any event, it is unnecessary for me to decide the question or, indeed, say anything further about it, as the facts of A & B were of a very special kind, and the passage of reasoning concerned was ultimately expressly stated to be unnecessary to her Honour's decision.

312 For these reasons, nothing in A & B, or any of the other decisions referred to in the submissions of the plaintiff, causes me to conclude that the defendant is vicariously liable for the criminal acts of Palframan perpetrated upon the plaintiff. That aspect of the plaintiff's claim must be rejected.

313 The second way in which the plaintiff's claim was advanced was with reference to the law of negligence.

314 In that regard, the defendant admitted that it was the 'occupier' of the House of Guilds and that it owed to the plaintiff a non-delegable duty 'to exercise reasonable care to avoid him suffering reasonably foreseeable injury while he was a student'.[237]

315 As I have noted, the defendant also admitted, or at least did not contest, the occurrence of abuse perpetrated upon the plaintiff by Palframan or the proposition that the plaintiff has consequently suffered psychiatric injury.

316 It followed that much of the substance of the present dispute between the parties was whether the defendant was in breach of the stated duty of care, and, if so, to what extent.

317 By the latter contention, the defendant sought to engage upon an apportionment of any liability or, put another way, a confinement of the 'scope' of the duty of the defendant to acts undertaken on the premises of the school. That contention emerged into somewhat clearer view in the course of final submissions at the trial and is addressed separately below.

318 Any consideration of an alleged breach of duty of care must proceed by reference to the classic statement of Mason J in Shire of Wyong v Shirt,[238] which reads as follows -

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.[239]

319 As is evident, a consideration of the question of breach of duty proceeds upon a finding or acceptance of the proposition that a reasonable person in the position of the defendant would have foreseen a risk of injury to the plaintiff or a class of persons including the plaintiff.

320 In the present instance, the defendant did not really contest the general proposition that it was reasonably foreseeable that students of the school might have been at risk of sexual or other abuse or risk of injury.

321 That was certainly the case in terms of the risks of injury presented by the tools and other equipment in the House of Guilds, in response to which it seems that the defendant employed a warden and had a system of rostering of teachers and supervision. However, it is not evident that the system was limited only to care in respect of risks of that particularly physical kind, and the defendant did not suggest that it was.

322 The plaintiff led a body of evidence concerning 'historical' sexual abuse at the school, particularly in the late 60s and early 70s. In cross-examination and otherwise, the defendant made the point that certain of those instances were not reported to the school until much later.

323 However, the evidence included that of Mr Kearney concerning an encounter with a teacher and boarding house master, Mr McPherson. Other evidence suggested that Mr McPherson interfered sexually with various students. The events concerning Mr Kearney might present as preliminary to further interference of that kind, although whether or not that is so must depend to some extent upon the state of mind of Mr Kearney, which was not really the focus of his evidence in the present case.

324 In any event, Mr Kearney gave evidence that he and another student, Mr Henderson, complained to the then prep school headmaster, Mr Watson, concerning Mr McPherson. It does not seem that the complaint led anywhere, but it does confirm that which was not really contested by the defendant, namely that well before the plaintiff first attended the House of Guilds the school knew or ought to have known of the risk that the students in its care could be interfered with, sexually or otherwise.

325 So much was also apparent in the evidence given by Mr Egan. Even though he presented as someone who had not dwelt upon risks of the present kind, as he understandably thought of such things as distasteful and incomprehensible, he was still plainly aware of them. Mr Egan appears to have thought it to be unlikely that such a thing could happen at Geelong College, but he did not give evidence that such a risk was fanciful. As with some other witnesses, the real point of that part of Mr Egan's evidence probably concerned the system of rostering and supervision at the House of Guilds which might be thought to have been in response to a wide range of potential risks to students.

326 Primarily, however, the evidence of Mr Egan responded directly to that led by the plaintiff from Mr Baldwin-Cole to the effect that he had complained concerning sexualised fondling and other activity by Palframan in the House of Guilds in late 1987 and early 1988, which was shortly prior to the plaintiff's first attendance there in late 1988.

327 As I have already noted, Mr Baldwin-Cole had a clear recollection of both the physical layout of the House of Guilds and his reporting of events to Mr Egan and, later, to Mr Elliott.

328 More generally, however, Mr Baldwin-Cole was impressive in the way in which he gave his evidence. It was measured, and there was a quality of 're-experiencing' in some of it. That lent a quality of immediacy to his evidence which, together with evidently remembering correctly several details of the layout of the House of Guilds, made it compelling.

329 Mr Baldwin-Cole was cross-examined with a view to the submission ultimately made that his account ought not to be accepted by reason of the fact that he could not recall the precise words spoken to Messrs Egan and Elliott in late 1987 and early 1988 respectively. Reference was also made to him having recently made his own claim against the defendant.

330 Such points are available to be made. However, I do not find it surprising that a then 15 year old boy reporting to teachers nearly 35 years ago does not now have a memory of the precise words spoken. Many witnesses in the present case gave evidence of conversations and events that are now long past, and few, if any, now expressed a memory of the precise words spoken. Most gave evidence by reference to general or specific impressions. I did not find Mr Baldwin-Cole's evidence surprising and I do not regard the fact that it was given to some extent by reference to a memory of impression rather than precise words a compelling reason to reject it. Nor, having seen the manner in which he gave his evidence, do I think that the fact that Mr Baldwin-Cole has made his own claim is any good reason to reject his evidence.

331 For its part, the defendant contended that I should be careful when considering the evidence of Mr Baldwin-Cole concerning his complaint to Mr Elliott because the latter is now deceased. The defendant further contended that I should otherwise not accept the account of Mr Baldwin-Cole by reason of the evidence of Mr Egan.

332 Mr Egan retired from teaching in 1997 and is now 85 years of age. As I have noted, he presents as gentlemanly and well intentioned, if understandably old-fashioned. I have no doubt that he was a good teacher and very devoted to serving Geelong College.

333 That said, his memory of events which occurred now nearly 35 years ago was broad, at best. He acknowledged freely that he had not been called upon to cast his mind back to these specific events until shortly before the trial. More than once he acknowledged his memories to have been 'vague'.

334 Further, he had no specific memory of Mr Baldwin-Cole, or the plaintiff, and his memory concerning arrangements relating to Palframan and Mr McCann demonstrated the vulnerabilities in his apparent recollections.

335 In addition, having seen the kind of person that Mr Egan is, I can quite understand why it could be that he might not at first comprehend or 'hear' a complaint of the kind made by Mr Baldwin-Cole. Mr Egan freely acknowledged that such things are 'not a part of me' and that he looks for the good in people, not the reverse.

336 In that, it was evidently not the position of his employer that Mr Egan and others ought to be keeping any particular or acute eye out for such things. More than once, Mr Egan confirmed in evidence either that the school had provided no instruction concerning risks of sexual abuse, nor sponsored any specific discussions concerning complaints of the kind made by Mr Baldwin-Cole, or dealing with them, or that he could not recall any such things ever having occurred.

337 For these reasons, I am unable to accept that that Mr Egan 'would necessarily have' remembered and acted upon such a complaint if made. On the other hand, to the extent that the plaintiff, in address, sought to cast Mr Egan as consciously tolerant of abuse or the risk of it, I cannot accept that either.

338 To me, the truth is somewhere in the middle. Having seen Mr Baldwin-Cole give evidence, I have no doubt that he complained to Mr Egan in the manner he described. Mr Egan, for his part, most likely received but did not fully process or comprehend the complaint and now has no memory of it. The latter is understandable and the former is not wholly surprising.

339 Nothing of what I have said should be read as critical of Mr Egan. He is a plainly decent man. However, none of us is immune to misunderstanding, particularly when looking for the good not bad in people, and absent any emphasis to the contrary from his employer.

340 As to the evidence of Mr Baldwin-Cole concerning subsequent complaint to Mr Elliott, I have taken into account the fact that Mr Elliott evidently passed away in recent years and so was unable to be called to give evidence.

341 It will also be evident that I have given consideration to the passage of time since 1988, as was emphasised and relied upon by the defendant in address.[240]

342 Nonetheless, having seen Mr Baldwin-Cole give evidence, I would simply say that I accept that he made the complaints to Mr Elliott in the manner he described.

343 It follows from the above that the defendant had specific warning of the risk to students posed by the activities of Palframan in the House of Guilds, or, at the very least, was in a position further to investigate matters with Mr Baldwin-Cole which would likely have led to a specific understanding of that risk.

344 In response, of course, the school did nothing. Whilst in some instances, it is not negligent for a defendant to do nothing in response to a specific risk, the present instance was not directly said to be one of them.

345 The general position of the defendant - as I understood it - was that whether specific complaint was made by Mr Baldwin-Cole or, for the reasons earlier given, the broader risk that students in the House of Guilds could be exposed to a risk of inappropriate sexual conduct was real and not fanciful, the defendant was not in breach of its duty of care to the class of students including the plaintiff because it provided a full time warden and a system of rostering and supervision within the House of Guilds and, otherwise, it was a 'different time' prior to the enactment of the Working with Children Act 2005.

346 In my view, the general system relied upon by the defendant was not a reasonable response to the specific risk presented by the complaints made by Mr Baldwin-Cole. As submitted by senior counsel for the plaintiff, Palframan should have been either excluded from the House of Guilds, or 'watched like a hawk'.[241]

347 More than once in the running of the case the defendant emphasised the absence of any evidence relating to 'programs' or 'processes' which could be said to have been available and would have avoided the risk.

348 Part of this contention included the suggestion that 'society has changed'; the implication being that awareness of the risk of sexual abuse has become more prominent in recent times, and, for that reason, legislative initiatives such as the Working with Children Act 2005 (Vic) have only more recently come to be implemented.

349 To the extent that any such general contention - to the effect that nothing more could or should have been done about the risk of sexual abuse in the late 1980s and early 1990s - was sought to be established via the cross-examination of witnesses, or otherwise, I do not accept it.

350 To some extent a contention of that kind was sought to be developed via the cross-examination of the plaintiff's eldest brother, MYJ, who works in a management role in a professional sporting code. However, MYJ gave evidence of processes of registration and training in the setting of amateur sport going back many years, and prior to 2005.

351 The evidence of Mr Egan also largely stood against any such proposition. Mr Egan was aware at the time of the general risk that students might be sexually abused. However, Mr Egan was also asked repeatedly about whether his employer had ever given him any direction about the risk of sexual abuse and he confirmed that it had not or, at least, he could not recall it. At no point did Mr Egan say that such a direction was unnecessary or that for some other reason it need not to have been given. On the other hand, Mr Egan gave evidence that if a student had said that he had been sexually assaulted he would not have let Palframan into the House of Guilds and/or would have taken it 'straight up the line'[242].

352 In the circumstances as highlighted by the evidence of Mr Egan, it is not easy to accept that there was anything about 'contemporary society' at that time that prevented or rendered impossible or inappropriate the highlighting of the known risk of sexual abuse together with a direction to keep a careful eye out for any signs of such conduct and the identification of a ready pathway for the making and investigation of complaints and the implementation of response by either barring offenders from the House of Guilds or supervising their activities very closely. Indeed, the evidence of Mr Egan suggests that such an approach would have given effect to the standards of the time.

353 However, the unfortunately reality appears more to have been that whilst the risk of sexual abuse was or should have been appreciated at that time, it was neither highlighted by the defendant nor specifically responded to. It may be that it was either hoped either that such a thing would not occur at the school or that no significant harm would come of doing nothing specific in response. Whether that be so or not, I do not regard the approach then adopted as having been any more a reasonable response to the risk than it would be now.

354 Somewhat consistently with the above, in connection with the 'Loud Fence Installation Ceremony' in 2018, the defendant acknowledged the 'harm that students of the past experienced from abuse while attending The Geelong College'. In that, it was acknowledged that -

The School had no significant understanding, policies or procedures in place in the 80s and 90s to guide staff and adequately protect our students. This was a major failing of this school.

355 That acknowledgement is both consistent with the evidence of Mr Egan, and an acknowledgement of what was there identified as having been a past failing. It is not there said that nothing could have been done at the time. To the contrary, the effect of the acknowledgement is that doing nothing specific at that time was a 'major failing'.

356 For these reasons, I do not accept that there is insufficient evidence concerning an available and reasonable response to the risk presented by Palframan in the period 1987 to 1990.

357 In my view, the defendant breached its duty of care by failing to apprehend the import of the complaint being made by Mr Baldwin-Cole, and part of that was because it did not emphasise the potential immediacy of that risk to teachers such as Mr Egan. Nor did it specify and emphasise the importance of either excluding a pest such as Palframan or raising the issue at the highest levels of the school following which Mr Baldwin-Cole would surely have been further questioned and Palframan excluded from the House of Guilds or, as senior counsel for the plaintiff put it, 'watched like a hawk'.

358 Such a response was seemingly as available then and as it would and should be now, regardless of intervening legislative initiatives such as the Working with Children Act 2005 (Vic). The defendant was negligent in failing to anticipate and highlight the risk identified and in failing to facilitate the ready imposition of such a response.

359 In this regard, as was submitted by senior counsel for the plaintiff in address, the failure of the defendant to apprehend and act upon the complaint made by Mr Baldwin-Cole was and is 'game over', at least in respect of the issue of liability in negligence.

360 In my view, however, more may be said concerning the alleged negligence of the school and particularly the adequacy of the 'system' relied upon by the defendant in evidence.

361 In that regard, as is evident, the defendant relied upon the fact of the provision of a warden (namely, Mr Elliott), the rostering of teachers on duty and the undertaking of supervision in the House of Guilds as standing to discharge its obligation to take reasonable care.

362 I accept the evidence that a warden was provided and that a teacher was rostered to be and should have been on duty in the House of Guilds outside school hours.

363 However, it was not evident that the woodwork room, in particular, was constantly under supervision. Many witnesses gave evidence concerning the fact that a supervising teacher might be away from the room for periods of time attending to other duties or things.

364 More importantly, as I have indicated, it was not evident that the risk of sexual or other abuse was ever emphasised to those supervisors by the school. Nor does it seem to have been specifically identified as an important or necessary part of the process of supervision that either Mr Elliott or Mr Egan or any of the other teachers concerned should keep any particular eye out for such a risk.

365 That such emphasis should have been given is, to me, evident not only from the fact that the risk was foreseeable, but from the very conception of the House of Guilds.

366 In that, the structure of the House of Guilds potentially exposed students of the school to adults from outside the school and in circumstances in which no evidence was led concerning any processes for the consideration of any risks presented by all or any of those adults.

367 Thus, in its conception, the defendant evidently allowed adult outsiders to attend the House of Guilds in order to work upon crafts or other such projects upon the payment of a membership fee. In the course of that work, those outsiders might and evidently did mix relatively freely with the students of the school.

368 More particularly, in the case of Palframan, the defendant thereby facilitated him interacting with young and vulnerable students of the school over a period of several years, and in the course of which he abused at least the plaintiff and Mr Baldwin-Cole, whilst at the same time evidently attending to no particular woodwork or any other such projects of his own that any witness was able to remember (which should have been the very reason why he was there).

369 Such circumstances do not bespeak the operation of a system of supervision attuned to monitoring and responding to the foreseeable risks presented.

370 That the system of supervision was likely inadequate as a response to the foreseeable risk is also apparent from the evidence of the plaintiff[243] concerning the process by which he came to be abused and, in particular, the extent of the abuse which he suffered in the woodwork room of the House of Guilds.

371 In that regard, the plaintiff gave evidence that from 'early on' after his first attendance at the House of Guilds in late 1988, when he was 13 years of age, Palframan showed 'a deal of interest' in him, and stood close and within his personal space. The plaintiff gave evidence of feeling 'awkward about how close he was'.[244]

it was very quick that whilst I was sticking the bits of plywood together and working on the woodwork tables that were located along the front of the building, his closeness, physicality, rubbing against me, putting his hands on my bum, putting his hands up my shirt and things that I'd never experienced like that before, was just the immediacy of how he first started preying on me.[245]

373 The plaintiff said that Palframan would rub the plaintiff's crotch through his clothing and that he was attending at the House of Guilds once or twice a week and it 'would happen every time I was there'.[246]

374 After the first term in 1989, Palframan commenced giving the plaintiff lifts home and abuse would then also take place in his car and unit. However, the abuse in the House of Guilds continued. The plaintiff gave evidence as follows -

Were there further assaults during this time?---Heaps and heaps and the shame and guilt and questions that I have that are never ending about how I allowed this to become so repeated, the powerless nature that I was living my life at that time. There was a number, I'd say in excess of 50 times that he had taken me and assaulted me. There was a process, though. The majority and I say the large majority, being 90 per cent of the time, his assaults would start almost like foreplay at the House of Guilds where he would have his hands in all sorts of positions and all over me, to then the horrific nature of what he would do to me back at his unit with also the stuff that would happen in the car.

One of the subsequent occasions shortly after the first abuse was inflicted on me, I arrived again at his house after he had been rubbing my crutch in the House of Guilds, again rubbing his body up against me to the view where I could virtually feel his penis against - against my bum.

...

He tried to kiss me on the lips and he would always take off my clothes and he would always start with a process that soon become this rhythm and routine that I'm ashamed and feel terrible that I couldn't break the cycle that would start with what he would do to me from the House of Guilds through to the car, through to what would happen in the unit.[247]

375 Later, when giving evidence concerning the layout of the House of Guilds by reference to a map, the plaintiff gave further evidence as follows -

Now, the abuse that you've described, just using the map, at the lathes and at the other benches, could you with your pen mark the areas where that abuse happened and tell me if it's everywhere because then there's probably no point in that exercise?---It was everywhere, so I'd end up putting circles all over it. So the abuse [was] happening while I was at the work benches, on the lathes, in the nook, around the band saw. Wherever there was an opportunity to put his hands on me in sexually exploitive ways, it was always done.[248]

376 As I have noted, it was uncontested that the plaintiff was abused by Palframan in the House of Guilds. The extent of the abuse that occurred there was not directly contested.[249]

377 That such abuse was both regular and extensive is evident in the evidence referred to above.

378 Further, whilst at trial a degree of focus was given to the area underneath or behind the stairs described as 'the nook', the evidence of the plaintiff was that the abuse occurred 'everywhere' around the woodwork room, including at the work benches, which, on the evidence, were in a relatively open area adjacent to the warden's office and which could be viewed from there via an open door and a window.

379 That such a degree of abuse could take place with regularity, repeatedly and in relatively open areas bespeaks a degree of confidence in the abuser both that the victim will not feel that he is in a position to complain and that any question that might ever come to be raised by a 'supervisor' will readily be able to be fended off or explained away without much in the way of accusation or subsequent investigation.

380 In short, such circumstances bespeak an environment which, as several witnesses generally described it, Palframan had 'the run of the House of Guilds' or was 'part of the furniture' and 'felt at home' and in which his presence and activities were neither likely to be questioned nor critically examined by those supervising.

381 In so concluding, I do not overlook the evidence of a few witnesses to the effect that the abuse perpetrated by Palframan in the House of Guilds came as a shock, and to the effect that they did not recall seeing anything that was 'untoward'.

382 Some of those witnesses - such as, for example, Karen Pegg - were not 'supervisors', so were not tasked with the job of supervising in order that students may not be exposed to foreseeable risks of injury.

383 Others, such as Mr Egan and Mr Lancaster, were supervisors, but, as I have indicated, were evidently not instructed by the school concerning the risk of sexual abuse or to keep any particular eye out for it or to view critically or enquire immediately into activities with students of the school undertaken by either other teachers or community members.

384 In the context described, and for the reasons which I have outlined, whilst there was a warden and a system of rostering and supervision implemented in the House of Guilds during the relevant time, it is sufficient to say that I am satisfied that that 'system' was both ill-equipped and inadequate to respond to the foreseeable risks of injury presented and that such inadequacy at that time was a cause of the abuse suffered by the plaintiff at the hands of Palframan.

385 As I have noted, the defendant emphasised the 'scope' of the duty it owed and thereby contended that it was not responsible for any abuse which occurred outside the House of Guilds and, particularly, in places such as Palframan's car, unit and, on one occasion, at the plaintiff's home. This argument was also framed in terms of indeterminacy, or remoteness.

386 In that, the defendant submitted that 'such conduct occurred as a result of contact between the plaintiff and Mr Palframan which was arranged with the knowledge and permission of the parents'.[250]

387 In support of that submission, the defendant sought to rely upon authorities to the effect that the duty of the school generally ends 'at the school boundary',[251] and otherwise emphasised the 'duty' of the plaintiff's parents.[252] In that, the failure of the plaintiff to call his father was criticised and an adverse inference invited.[253]

388 The defendant's defence makes no mention of the plaintiff's parents, who were also not parties to the proceeding. Nor were the parents sought to be implicated in the course of the defendant's opening prior to the calling of any witnesses - indeed, any specific criticism of the parents was there eschewed. At that point, it was acknowledged that the parents were 'beguiled in relation to this man'.[254]

389 While the defendant ultimately came to 'float' allegations against the parents in final written and then oral submissions, during the running of the trial it had not been obvious that any allegation of that kind was contemplated or being made.

390 It may well be that the defendant was laying down a subtle trail during the course of the cross-examination of Dr Tagkalidis, but the point of that endeavour is considerably more evident in hindsight.

391 Further, that part of the cross-examination of Dr Tagkalidis went mostly to the locations of abuse, and to suggestions concerning the 'contribution' made by abuse in those differing locations to 'overall' psychiatric injury. It was not plainly apparent at that time that the defendant might be coming to submit that any blame for the abuse perpetrated by Palframan outside of the House of Guilds should be apportioned to the plaintiff's parents.

392 In the circumstances described, I am unable to accept that the plaintiff should be criticised for failing to call his father or that any adverse inference ought be drawn against him for failing to do so.

393 Even if such an inference could or should be drawn, it is not clear to me what it should amount to, or what of the evidence concerning the abuse perpetrated by Palframan it should be taken to cast doubt upon.

394 In that regard, I have described the allegations against the parents as having been 'floated' because, in final written submissions, the defendant contended as follows -

However, a parental duty can arise in situations where the child is led into danger by actions of the parents. In this sense, it was the actions of the Plaintiff's parents, in associating with Mr Palframan, apparently befriending him, accepting him into their home, and allowing him to be alone with the Plaintiff in the car and inside his and their home, which led the Plaintiff into danger away from the School. Arguably (although it does not, of course, have to be determined for the purposes of this proceeding), the Plaintiff's parents did owe him a duty of care in such circumstances.[255]

395 I do not accept any part of the premise there advanced as a foundation for the submission ultimately put.

396 The evidence was that Palframan sought to develop a friendship with the plaintiff's parents and that was very likely as a self-protective manoeuvre. It was not the other way around.

397 Further, Palframan's manoeuvres seeking friendship occurred only after he had been exposed to the plaintiff for several months and 'groomed' him at the House of Guilds as a consequence of the negligence of the school.

398 In addition, no suggestion was ever advanced during the course of the trial to the effect that the plaintiff's parents either knew or ought to have known that Palframan - a man introduced to their young son via the school while he was in its care - was a specific threat. On the evidence, if anyone was in a position to evaluate that threat and report it to the parents it was the school, and, as I have indicated, that did not occur.

399 In the end, of course, the submission of the defendant stops short of alleging any more than that a common law duty was 'arguably' owed by the parents. It is not distinctly contended that any such duty was owed, breached and a cause of the damage suffered, although, as I have endeavoured to identify, the general suggestion is sought to be 'floated'.

400 Such a suggestion having been 'floated', however, I should make it clear that I would have rejected any contention that the parents owed and breached any such duty if such a submission had clearly been made. There was no cogent evidence that the parents knew or ought to have known of the risk presented and, indeed, the parents were not parties to the proceeding and did not give evidence in it. It would be grossly unfair to them to draw any conclusion of whatever kind is ultimately now sought by the defendant.

401 In the end, the gravamen of the defendant's point is perhaps no more than that it submits that it should not be liable for damage suffered outside the House of Guilds because, it is said, the defendant was in no position to exercise control over what happened on premises other than its own.

402 In my view, none of the cases relied upon by the defendant, and in which courts have made reference to the duty owed by a school to a pupil as in many cases stopping at the 'school gate', are analogous with the present.

403 In those cases, the injury concerned occurred either entirely off the premises of the school[256] or outside of school hours.[257] Even in the former context, the courts concerned contemplated circumstances in which the duty of the school might extend beyond its boundary.

404 In that regard, in The Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman,[258] the majority comprising Sheller JA, with whom Priestley JA agreed, resisted any physical delimitation of duty by reference to a school gate or the like and stated -

In my opinion the extent and nature of the duty of the teacher to the pupil is dictated by the particular circumstances. I do not think its extent is necessarily measured or limited by the circumstance that the final bell for the day has rung and the pupil has walked out the school gate.

405 In that regard, the majority confirmed the judgment at trial, in which the school was found to have breached its duty to a pupil albeit in respect of injury suffered outside the premises of the school.

406 Separately, Mahoney JA, albeit in dissent as to the result, contemplated that a school might have a duty of care in circumstances not so far removed from the present -

Thus, if it is plain to the school that, immediately outside the school premises, there is a busy and therefore dangerous road, the school will ordinarily have an obligation to shepherd pupils of a young age across the road. But if, in the course of walking from school to home, the student had reason to cross a busy road two kilometres from the school, it does not follow that the obligation of the school to take precautions for the safety of the student will involve that it shepherd the student across the road. I do not mean by this that a school may not have some obligations in respect of pupil safety even two kilometres from the school. Thus, if the school was made aware that, at that place, the student was habitually molested, it might arguably have an obligation, inter alia, to draw that matter to the attention of the parents, the police or others. I have referred to these examples to illustrate that what the obligation to take precautions in respect of a pupil's safety will require the school to do will vary according to the circumstances of time, place and otherwise.

407 In the present case, Palframan's abuse of the plaintiff commenced in late 1988 and took place for some months extensively and only on the premises of the House of Guilds.

408 After the end of the first term in 1989, the abuse progressed to Palframan's vehicle, unit and at least one occasion elsewhere. However, the unchallenged evidence of the plaintiff was that it remained overwhelmingly a 'process' or 'routine' of abuse that continued to commence in the House of Guilds and from there progressed to the other locations.

409 At the very least, and as I have found, the duty of care owed to the plaintiff by the defendant was breached in respect of the extensive abuse suffered by him at the hands of Palframan on the premises of the defendant and, on the evidence, that abuse was a cause of the psychiatric injury that he has suffered.

410 In that sense, the issue presently raised by the defendant was initially said to concern the 'scope' of the duty owed.

411 In that regard, however, I did not understand the plaintiff's case to be that the school was in a position to supervise or control the activities of Palframan with the plaintiff in his own vehicle or unit or, on one occasion, the plaintiff's own home.

412 The point about the 'other abuse' was that, on the evidence, it was a consequence of the several months of initial 'grooming abuse' of the plaintiff that took place at the House of Guilds and continued to be so because of the ongoing 'process' by which, overwhelmingly, the abuse would start at the House of Guilds before progressing to Palframan's car or unit. That 'process' took place on 90% of in excess of 50 occasions.[259]

413 This seemed ultimately to be acknowledged in the course of final address by senior counsel for the defendant in which it was submitted that the other 'actions', which, it was said, had occurred with 'parental consent', constituted 'a break in the chain of causation ... [involving] conduct of which the school could not possibly have any idea'.[260]

414 For reasons earlier given, I reject any suggestion that the plaintiff's parents ought be implicated in any blameworthy way in any part of the abuse perpetrated by Palframan.

415 Nor do I accept that it was abuse of which the school could not possibly have any 'idea': if the school had either heeded the complaints of Mr Baldwin-Cole or properly been supervising the activities of Palframan in the woodwork room, it would not have taken much in the way of imagination to be apprehensive that conduct in the nature of abuse might be occurring outside the premises of the school.

416 That is especially so in light of the evidence of the telephone calls made from the office of the House of Guilds and by which it was arranged that Palframan would give the plaintiff lifts home at night in his personal vehicle - at least one of which calls is said to have occurred in the presence of the warden, Mr Elliott - together with what must have been multiple subsequent occasions on which the plaintiff left the premises of the House of Guilds in the company of Palframan and got into his vehicle parked either outside or nearby.

417 Any properly instructed supervisor seeing any of those departures and knowing of the complaints earlier made concerning Palframan or properly appreciating the significance of what was going on repeatedly in the woodwork room immediately prior to that, would not need to think very hard before having an 'idea' that there was a risk that abuse of the plaintiff might be taking place in other locations.

418 In any event, I do not accept that there was any 'break in the chain of causation' between the events and abuse that I have described in the House of Guilds and the 'other' instances of abuse. There was no 'new cause'[261] or intervening gross negligence.[262] Indeed, I do not accept that there was any intervening negligence at all; and even if there were that would be insufficient to 'break' the chain of causation because the defendant's own wrongful conduct generated the risk of injury.[263]

419 It follows that the 'other abuse' is, on the evidence, no more than a consequence of the abuse established in and continued within the House of Guilds until the overall abuse was ceased by the plaintiff refusing Palframan in mid-1990.

420 In that sense, the defendant's breach of duty in respect of the abuse that occurred on the premises of the House of Guilds was and remained a cause of the 'other' abuse and the defendant must bear liability for the damage suffered as a consequence of its negligence.

421 The only exceptions of any significance to the above might arguably be the abuse that on one occasion took place at the plaintiff's home and on five or six further occasions took place in connection with the 'pamphlet run'. Abuse on those occasions seems to have occurred without any preamble commencing in the House of Guilds.

422 The plaintiff's distress when giving evidence concerning the episode that took place at his home was palpable. However, the same may be said for much of the plaintiff's recounting of several of the episodes of abuse in the course of his evidence: he was more often distressed when giving evidence concerning episodes of abuse than not.

423 Significantly, it seems to me, Dr Tagkalidis was loathe to separate out that or any other part of the abuse suffered by the plaintiff. In his view, it was all part of a 'continuum'.

424 When, in cross-examination, Dr Tagkalidis was asked to differentiate between the impact of abuse suffered in different locations, he acknowledged that 'the abuse that occurred in the school would be a significantly lesser amount than the abuse that occurred in the home' but gave evidence thereafter as follows -

As I've said previously ... the latter abuse would not have occurred if the earlier abuse was not, there was not a development. ... It's a continuum, it's one element that is understandable as the story of the abuse, that's how I conceptualise it and how I've assessed it.[264]

425 When later asked to expand further in re-examination, Dr Tagkalidis confirmed that in his mind there was no distinction between what happened at the school and what happened at home.[265] He gave evidence as follows -

the whole experience is the abuse and, as I said earlier, this man built substantial trust with the claim that the plaintiff - and that was ruptured when the abuse, the overt abuse started occurring, that broke the trust completely and I mean very clearly from what you've read out the experiences were ... an entity in themselves starting in the school and continuing on, they ... really are a whole. It's very artificial to separate off where they occurred or where they didn't occur or where certain elements were or weren't occurring. At a clinical level it makes absolutely no sense to separate. So very artificial to do so. So hopefully I've emphasised that that's the case. It makes no sense to me as a clinician, as a psychiatrist, that there was a distinction between the two. There may be a legal one, I don't know, but certainly not in the plaintiff's experience of what occurred.[266]

426 I accept the evidence of Dr Tagkalidis and reject the invitation of the defendant to, in effect, either disregard the opinions of Dr Tagkalidis as ill-founded or to attribute little weight to then. To me, Dr Tagkalidis was impressive in his evidence and his opinions gelled with and served to explain the raw distress of the plaintiff which was regularly evident when he gave his evidence.

427 For those reasons, I reject any suggestion that the effect of the abuse which occurred on one occasion at the plaintiff's home and on five or six occasions in connection with the 'pamphlet run' is either severable from the whole or would make any significant difference if it were to be severed. There was no suggestion that without those episodes the plaintiff would not otherwise have the psychiatric injury and disabling symptoms that now affect him.

428 Moreover, as I have already indicated, it does not seem likely that any of those episodes of abuse could have occurred without the early months of 'grooming abuse' in the House of Guilds that both preceded them and established the 'process'.

429 In light of the above, I reject the contention of the defendant to the effect that any 'apportionment' is 'warranted', let alone the reduction in the nature of '65-75%' sought in the defendant's submissions.[267]

430 As a consequence of the breaches of duty identified, the plaintiff was exposed to sexual abuse at a very vulnerable stage in his development and, on the uncontested medical evidence, suffered psychiatric injury.

431 It was uncontentious that the plaintiff came from a good and supportive family. His parents were educators and his brothers have been successful and supportive of him in his recent years of distress. His wife, PCC, also impressed me in her evidence as well as in her steadfast endeavours to support her husband and to alleviate his suffering.

432 I accept the evidence which supports the view that the abuse had an effect upon the plaintiff from his adolescence. He was evidently acutely ashamed and embarrassed about the abuse and frightened that it would be uncovered and, in effect, reflect upon him in some way. He responded in various maladaptive ways, such as with anger and isolation, about which his brothers gave evidence.

433 I accept that the abuse affected his mood and behaviour and may have affected his schooling, but more likely not in a manner that significantly affected his academic performance in Year 12.

434 In that regard, the evidence was that he passed VCE in 1992 and also achieved some degree of sporting and other success in his later years of schooling. I did not assess him as likely to have been an academic style of student and he did not describe himself that way.

435 I also accept that the abuse continued to have an effect upon his mood and behaviour after his school years and into his twenties. The plaintiff sought to attribute his early lack of success in tertiary education and, to some degree, his false start at the Carlton Football Club, to the abuse.

436 To me, the evidence concerning the effect of the abuse upon the plaintiff's development and 'trajectory' in that period was somewhat less compelling. His evidence was that he was affected by nightmares and the like throughout that time. On the other hand, both prior to and during that time, some of the evidence showed him to have been social, outgoing, 'gregarious' and, ultimately, attractive to his later wife.

437 In this sense, I accept that the abuse was affecting him, and I do not entirely discount the possibility that it cost the plaintiff a year or even slightly longer during this time, but whether it affected the 'trajectory' of his life significantly during his early to mid-twenties is not altogether clear. I will return to that issue in the context of evaluating the possibilities in connection with the plaintiff's claim for pecuniary loss.[268]

438 In this context, the plaintiff was not at that time getting any treatment, was working part-time at the Eureka Hotel in Geelong and, indeed, resumed his studies part time in 1997, which he ultimately completed in 2000. At the same time, I accept his evidence of feelings of shame associated with his 'secret' and to the effect that he set himself to become or at least appear to be 'successful'.

439 The precise point at which that particular determination emerged with any force seems debateable. At one point in the plaintiff's evidence, it seemed to be being said that this occurred during the plaintiff's schooling, but that is not readily reconcilable with the evidence of anger, struggle and diffuse focus whilst he was at school and particularly in his early years of tertiary education and during his traineeship with Carlton Football Club.

440 I tend to think that the determination to be 'successful' was a particular and more likely later manifestation of the plaintiff's earlier 'bravado' set within a general determination to prove to himself and others that he was 'alright' despite the then internal and corrosive secret of the abuse.

441 For these reasons, it seems to me that the specific determination to be 'successful' more likely emerged with particularity at some point after the plaintiff met PCC at the Eureka Hotel, who was herself working there but also studying commerce. She was both two years older than the plaintiff and two years ahead of him in her studies. It is unclear when she finished working at the Eureka Hotel. PCC impressed me as both mature and level headed. In my view, it is likely that she had a particular influence upon the plaintiff determining to become 'successful' and ultimately pursuing that goal, and the plaintiff essentially said as much in his own evidence.[269]

442 Notwithstanding the departure of PCC from the Eureka Hotel, it seems that the plaintiff continued to work there after he finished his commerce degree and until late 2004. He became the general manager at the pub in about late 1997 and at one point was the nominee.[270] Overall, he seems to have worked at the pub over a period of roughly seven or eight years.

443 PCC gave evidence that the plaintiff coped with working at the pub, as it suited him and it was 'unstructured'. She said that he was reluctant to leave the pub for 'many years'.[271]

444 In that portion of her evidence, PCC reflected that in that period, and up until mid-2007, the plaintiff had presented himself to her in the same was as he did to the world. He 'filled his schedule' and always had people 'around'.[272] In giving that evidence, she became distressed.

445 Ultimately, and with encouragement from PCC, it seems that the plaintiff commenced upon a more settled career path with Diageo. That occurred in about late 2004, when the plaintiff was about 29 years of age, and seems to have involved work in sales with, in due course, an increasing degree of management.

446 In my view, the most likely point at which the plaintiff set himself to become 'successful' was in the period between the completion of his commerce degree in 2000 and his departure from the safe haven of the Eureka Hotel and commencement upon a career in sales and then management with Diageo in late 2004. As I have indicated, I regard the involvement of PCC in that determination to have been of particular importance[273], although I do not discount the evidently steady example also likely to have been set by his older brothers in that time.

447 Over time and after commencing with Diageo in late 2004, the plaintiff's involvement in direct sales seems to have gradually diminished and his involvement in management gradually increased. That is also reflected in the positions that the plaintiff held with Diageo and then later with Lion Dairy & Drinks and finally with Treasury Wine Estates: the underlying business is sales, but the plaintiff's roles were increasingly more directed to management such that sales might be achieved or increased.

448 It was in that context, of course, that the plaintiff gave compelling evidence of his breakdown of sorts in mid-2007 and struggles with business related travel and the like.

449 His then treating psychologist for a period of about 12 months, Pippa Grange, reported his 'debilitating anxiety and panic', 'especially when he was required to travel'. The sexual abuse by Palframan was the focus of therapy. Ms Grange referred to both physical and emotional symptoms and the plaintiff's 'shame based self-view'. She spoke of his frustration and anxiety at his 'inability to function fully'. She considered the abuse to have had a 'profound effect' upon his quality of life and career.[274]

450 In that regard, the plaintiff's workmate, Mr Ennis, gave evidence concerning the plaintiff's 'challenging behaviour' during the period that they worked together at Diageo, including in respect of travel. Similarly, Ms Parkes gave evidence of the plaintiff's controlling and difficult behaviours while working at Treasury Wine Estates and well as his anger at retrenchment.

451 More generally, the plaintiff's wife, PCC, gave emotional evidence concerning the struggles of her husband before and since his 'breakdown' in mid-2007. She gave evidence that -

It completely makes sense to me when he sort of revealed, you know, what had happened to him. Sorry. You know, he made more sense to me when he shared, you know, the trauma and what he'd been managing and the façade and the way he turned up in the world made complete sense to me retrospectively once I understood.[275]

452 Immediately thereafter, she referred to her husband as having had to manage on his own 'for so long'.[276]

453 In respect of the period since mid-2007, PCC said -

Oh, I mean there's been and continues to be many periods of dark times and significant episodes of emotion that are quite physical in their nature, and during that period he was, you know, very broken and, you know, it was devastating as a partner to watch and to learn, which I learning at that point.

... They come in - well, early on there was quite a significant amount of them post him revealing and working through all of that, but continuously, you know, there's significant episodes where, you know, [PCB] gets overwhelmed when things get just too much and, you know, he gets - and he will break down and have, and will be quite distraught and, you know, it's quite immobilising for him and it's terrible to try and observe, or terrible to observe and try and coach and help him through those moments and, you know, at other times he will try to contain and maintain it within himself so it doesn't impact us and the family because, you know, it impacts the family and it impacts me certainly as well, but that has - there have been episodes consistently and continues to be where it's just too much.

It's just, yeah, I don't know whether that's a great descriptor but it overcomes him physically, you know, to the point of wailing and trying to contain, you know, himself obviously but it is quite distressing and he's very distraught when he goes through some of those episodes.[277]

454 It was also evident that some of the controlling or difficult behaviours observed in the workplace by Mr Ennis and Ms Parkes could also be evident in the home.[278]

455 For his part, the plaintiff gave evidence concerning the 'breakdown' and his nightmares and suicidal thoughts accompanied by physical effects.[279] The plaintiff later referred to the 'complex impacts of what this monster did to me' and said -

One of the significant ones is that I was controlled by this person, they took away control, and I tried to run away, tried to be as successful as I possibly could with the development of my façade and I've tried to control every situation since that, and it's painful and it's exhausting and part of the control was trying to manage my managers to try and take control of the agendas in a way that would remove travel, that would remove pressure on metrics, what would remove a whole range of different things.

I had a significant amount of jealousy. I spent a lot of time cutting down my colleagues because I will spend the rest of my life wondering what it would be like to be unconstrained and not have to deal with the challenges of pedalling so energetically to try and overcome these issues. My façade was exhausting. I spent most of my time requiring validation, and the validation was never about whether I was any good at my job. The validation was about whether I was actually okay as a person and that that secret that I had that I was so ashamed of was never going to come through. So I would endlessly be asking for people's validation.

So, travel was a significant component and it's been a significant issue, but it is only one of a number of issues that have resulted from what I have had to deal with, and my façade I just cannot - I have not got the energy to painfully manage that façade anymore. It's too hard for me.[280]

456 As I have earlier indicated, the evidence of the plaintiff, his wife, brothers and workmates concerning his behaviours and distress was given a professional perspective by the evidence of Ms Davis and Dr Tagkalidis.

457 Ms Davis gave evidence concerning studies and literature concerning child sex abuse and the negative impact on the brain and level of functioning. She said it was a 'strong predictor of a lifetime of psychopathology with grave long outcomes'.[281] Immediately prior to that evidence, Ms Davis referred to the plaintiff being 'triggered' and said -

He continues to experience many of the resulting consequences of having been a victim of child sex abuse. You know, he is constantly questioning his sense of self-worth, his self-confidence, who he is as a person, living with emotional dysregulation and it has had an immense level of duration over an extensive period of time.[282]

458 She said that the plaintiff's symptoms had been 'severe' since she first saw him in 2019.

459 Ms Davis was cross-examined concerning the plaintiff's career progression and said there had been a 'crippling effect' on him internally. She said that his progress 'had come at enormous personal cost'.[283] She referred to the 'bravado façade' and said that 'his triggers will continue and that it will be very difficult for him to proceed with this façade that is burnt out'.[284]

460 Dr Tagkalidis also gave evidence concerning the 'façade' and described it as a 'complex matter'. He said -

It relates strongly to his very prominent sense of shame in relation to the abuse. ... the façade really defends him against that being shown to others and him falling down, him not being able to cope in that context. Shame is a very, very powerful emotion and his sense of shame has really been very overwhelming right throughout and still is. It's part of the reason why this façade, this mechanism of coping has fallen down and at this stage I don't think he's going to be able to rebuild it in a functional way in the foreseeable future.[285]

461 Of the 'shattering' of the façade, Dr Tagkalidis said -

That's a significant part of what results in a person decompensating, not being able to cope, feeling far more stressed, losing their tolerance to stress, feeling more anxious and more depressed. When your mechanism for coping in life is broken or falls down, your ability to tolerate the stresses in life also falls down. So you become much more consistently and easily overwhelmed by any sort of stress really. I mean particularly stresses that relate to the very vulnerability, for instance this court case. I can't imagine that he's doing particularly well at the moment with all of this going on.[286]

462 The defendant called no expert psychological or psychiatric evidence to the contrary and, as I have indicated, I accept the evidence of Ms Davis and Dr Tagkalidis.

463 Although there were elements of cross examination of those and some of the other witnesses, and, indeed, submissions advanced by the defendant, by reference to suggestions such as the completeness or otherwise of the histories obtained, the plaintiff's 'impressive' career in the period 2005 to 2019 and 'personality factors', I do not regard any of that as significantly affecting or displacing the essential core of the evidence and opinions of Ms Davis and Dr Tagkalidis to the effect that the trauma of the childhood sexual abuse has affected many aspects of the plaintiff's emotional formation and behaviour and will continue to do so since the 'shattering' of the façade in about mid-2019.

464 Indeed, as I have indicated, their opinions sat comfortably with the contrast in 'personality' and presentation between the plaintiff and his brothers respectively when giving evidence. Having seen that contrast, it is impossible to accept that the plaintiff's problems at work and home about which he and others gave evidence amount in any significant way to the expression of 'normal' personality factors unrelated to the effects of the childhood sexual abuse that he suffered and gave evidence about so movingly.

465 In summary, the abuse perpetrated by Palframan as a consequence of the negligence of the defendant had an early effect upon the emotional development of the plaintiff. The plaintiff carried that internally corrosive secret for a long period, together with acute feelings of shame and inadequacy that he endeavoured to protect via a developing façade of 'bravado', normality and then 'success' that ultimately came to 'shatter' upon his retrenchment in mid-2019.

466 In this, as I have indicated, he has suffered very significantly, particularly via haunting thoughts and nightmares and emotional dysregulation in a manner that is quite evident when comparing his presentation with that of his brothers. That affected him at work and continues to affect him at home. On the evidence, it is likely to last his lifetime. Both Ms Davis and Dr Tagkalidis diagnose, in effect, post-traumatic stress disorder and a generalised anxiety disorder.

467 The effect of the plaintiff's psychiatric injury is compounded by his insight into its presence, yet his inability to 'manage' it in a way that brings any sustained peace of mind. As he said towards the end of his evidence in chief and concerning the comparison between his life and that of his successful brothers -

Well, it's heartbreaking because I love them so dearly and, whilst I'm so proud of what they've been able to achieve, I'm really jealous and endlessly jealous of not only their careers but the happiness they have because I don't understand why I can't have that, why I don't have that. Sorry.[287]

468 The plaintiff's acute emotional suffering and fragility was very evident at this and many other points in his evidence. I accept his wife's evidence concerning the ongoing effects upon him, particularly the ongoing 'dark episodes' in which he physically struggles to function.

469 I have considered the submissions made by both parties concerning general damages.

470 The plaintiff has suffered and will continue to suffer, probably for the rest of his life. That said, it seems likely that his suffering has become more intense since the 'breakdown' in mid-2007 and the insights that he has accumulated into middle age. Prior to mid-2007, it seems likely that he functioned a little more 'normally' than at present, albeit that, as his wife so poignantly remarked in evidence, he had had to manage alone and his behaviour made more 'sense' after she knew of the trauma.

471 I do not overlook the evidence to the effect that the plaintiff presently retains some degree of recreation and involvement in domestic and family activities despite his injury. That said, his present position is plainly fragile.

472 It may well also be, as Dr Tagkalidis essentially suggested, that the presently acute presentation of the plaintiff will naturally attenuate somewhat into the future, such that in four to five out to ten years he may be more able to tolerate stress and would be able to do 'some form of lower level work'.[288] The plaintiff will, however, always be and have been damaged.

473 For these reasons, I assess general damages in the sum of $300,000.

Part VB of the Wrongs Act

474 The defendant pleads that the provisions in Part VB of the Wrongs Act apply to the claim. The only practical significance in the submission relates to the applicable discount rate.

475 The application of Part VB depends upon the construction and application of s 28C(2)(a) of the Wrongs Act, which excludes the application of that Part to -

An award where the fault concerned is an intentional act that is done with intent to cause death or injury or that is sexual assault or other sexual misconduct.

476 Section 28B defines 'fault' to include 'act or omission'.

477 The plaintiff contended that the effect of s 28C(2)(a) was to exclude the operation of Part VB and relied, upon other things, upon State of Victoria v Thompson.[289] That decision concerns s 28LC of the Wrongs Act, which is in Part VBA, and is in terms slightly different to the present. I have noted the reasoning of the Court of Appeal in Thompson.

478 The submission of the defendant is directed to the essential contention that the relevant 'fault' must be that of the defendant, and in this instance, the sexual assault or sexual misconduct is that of Palframan, not the defendant. It follows, it was submitted, that Part VB is not excluded and applies to the present award of personal injury damages.

479 As I have noted, however, in Part VB the term 'fault' is defined inclusively and, one might think, somewhat unnaturally to include 'act or omission'. It follows that the term is specified to cover acts (or omissions) without specifying that such acts or omissions need be the acts or omissions of the defendant concerned.

480 Applying the statutory meaning of 'fault' - namely, act or omission - the section will exclude the operation of Part VB if the act or omission 'concerned' in the 'award' of damages is sexual assault or sexual misconduct. In this sense, it is unnecessary that the act or omission be that of the defendant, only that the defendant be liable in damages for it and that it be 'sexual assault' or 'sexual misconduct'.

481 In that sense, the acts or omissions 'concerned' in the present award of damages are for 'sexual assault' or 'sexual misconduct', albeit by Palframan, for whose misconduct the defendant is liable.

482 It follows, in my view, that s 28C(2)(a) applies to the present claim and the provisions of Part VB of the Wrongs Act are excluded. Consequently, I accept the submission of the plaintiff that the applicable multiplier is 3%.

483 I should add that the construction of s 28C(2)(a) which I have favoured would also seem consonant with the evident intention of the section.

484 The essential issues in the assessment of economic loss damages were -

(a) the plaintiff's contention that the abuse had an effect upon the overall 'trajectory' of his career progression such that he has suffered a general loss of earnings or earning capacity;

(b) the point in the future at which the plaintiff might return to work (if at all) and what he might earn when so returning;

(c) the plaintiff's likely retirement age.

485 In any case of the present kind, the determination of such issues is influenced by imprecise elements of impression and the need to contemplate hypotheticals and unknowable future events. Expert and lay opinions concerning such impressionistic matters cannot determine the answer. In my view, these considerations are particularly evident and applicable to the present case.

486 To some extent I have already stated my impressions concerning some of the impacts of the abuse upon the plaintiff's life.

487 As to the specific issue of overall 'trajectory', it will be evident that I have accepted that the abuse affected the plaintiff from his adolescence, but I do not regard that as having significantly affected his results at school. Nor do I place great significance - in terms of economic loss - upon its effects until some point after the plaintiff met PCC, which seems to have been in about 1997 or 1998, when he was 22 or 23 years of age.

488 The plaintiff did not give evidence of being academically driven or carrying a specific early career objective or 'dream' that he had either commenced or determined upon and which he was deprived of by reason of the abuse.[290]

489 Further, the success and career 'trajectory' of the plaintiff's brothers, with whom he might in a general sense be thought to share overall personality or character traits, may well look considerably more 'linear' in hindsight than, I suspect, they appeared when they were unfolding. Both might be thought to exhibit the kind of freedom, latitude and underlying confidence evident in members of a privately educated and supportive family where a degree of exploration in years of or surrounding tertiary education is neither uncommon nor discouraged.

490 I tend to think that such features would also have been evident in the plaintiff absent the abuse. For those reasons, I cannot accept that it was more likely than not that he would have simply ploughed through his commerce degree and, at the age of about 20, set upon the career in sales and ultimately management that he settled upon much later in his actual life.

491 An assumption of that kind - which is one of the assumptions made by Mr Thompson in his calculations - tends to overlook the influence of intervening maturity and perspective as the plaintiff approached his mid to late twenties, his ultimately successful completion of his commerce degree at Deakin in 2000 and the very important influence of PCC upon the timing of his determination to take a more 'professional' career path, initially with Diageo in late 2004.

492 In that sense, it is one thing to have ability, or aptitude, but there are many examples of a mismatch between ability and career progress. The missing feature is often personal circumstances, and in this instance the personal circumstances that I have referred to, and particularly the likely influence of PCC, cannot be underestimated. Whether the plaintiff was abused or not, it is hard to consider his career 'trajectory' independently of the influence of PCC.

493 For those reasons, while I do not entirely discount the possibility, I tend to think that it is more likely that the abuse did not materially affect the plaintiff's career 'trajectory' before about the age of 25 or 26, in the year 2000, after he had evidently met PCC at the Eureka Hotel and the year in which he ultimately completed his commerce degree.

494 By that point the plaintiff had evidently been the general manager of the Eureka Hotel since about late 1997. In that context, he undoubtedly accumulated experience in business and management. Yet, despite the evident encouragement of PCC to pursue more 'professional' employment, he stayed on at the pub for a further four years.

495 The evidence was that the plaintiff was reluctant to leave the Eureka Hotel during this time. He said that he felt 'safe' there[291] and seems generally to have been treading water during that period. I have also already referred to PCC's evidence in which it was later obvious to her why he had been reluctant to leave the pub. To me, it is from about the completion of the plaintiff's commerce degree, at the end of 2000, that the abuse more likely affected the plaintiff's career 'trajectory' by forestalling his transition into more 'professional' employment of the kind that he later undertook.

496 In that sense, absent the abuse, and having regard to the otherwise likely presence and sensible influence of PCC, I tend to think the plaintiff would have entered upon that phase of his career perhaps four years earlier than he actually did. As I have earlier indicated, there is a less significant possibility that the transition could have occurred even slightly earlier than that.

497 Once the plaintiff started at Diageo, in about late 2004, and thereafter, notwithstanding the effect of the abuse, his career progression was relatively 'linear', certainly in terms of increases in earnings and the accumulation of promotions, which probably reflected his essential ability in combination with, for most of that overall period until late 2019, the assistance, support and maturity of PCC.

498 For all of these reasons, I tend to think that absent the abuse it is possible that the plaintiff lost some time in his early years of tertiary study and the traineeship at Carlton Football Club but it is even more likely (albeit still a past hypothetical) that the plaintiff would have set out upon properly 'professional' employment in about 2001, rather than late 2004, and thereafter followed a progression largely similar to that which he ultimately did follow, albeit continuing for as many as four further years until mid-2019.

499 It follows from the above that I consider the abuse to be likely to have had an effect on the plaintiff's career 'trajectory', albeit not precisely of the kind that the forensic accountant, Mr Thompson, was asked to assume in making his calculations concerning past loss.

500 In that regard, taking account of the necessarily incommensurable character of the possibilities concerned, and therefore the imprecision necessarily inherent in an evaluation of this kind, I consider that the effect of the abuse upon the plaintiff's past career 'trajectory' until mid-2019 is best compensated by awarding him damages for two years of earnings at a senior level prior to his psychological collapse after his retrenchment from Treasury Wine Estates.

501 An approach of this kind takes direct account of the likelihood, in my view, that the plaintiff would have commenced upon the essentially 'professional' part of his career some years earlier than he in fact did (and possibly even earlier than that), and would likely have taken about the same time to achieve earnings at a senior level as he did even with the abuse, and continued to work in that capacity longer than he in fact did and until the psychological collapse precipitated by the retrenchment in mid-2019.

502 That said, the fact that only two years of senior earnings' are to be awarded and not more is in recognition of the various possibilities involved when assessing the value of such a hypothetical.

503 From this point, there was a degree of dispute in the submissions of the parties concerning whether or not the plaintiff's retrenchment in mid-2019 from senior employment with Treasury Wine Estates was, in substance, caused by the effects of the abuse upon the plaintiff and his psychiatric injury.

504 In my view, it is unnecessary to determine that issue one way or the other, albeit that there seems to me to have been a significant likelihood that the retrenchment was hastened by the effects of the abuse inasmuch as those effects affected the plaintiff's preparedness to travel, and the evidence of Ms Parkes tended to suggest as much.

505 Whatever might be said about that possibility, however, the one thing that can be said about the retrenchment is that it had a devastating psychological effect upon the plaintiff, and the degree of that effect was greatly amplified and made disabling by his thoughts and feelings relating to the abuse. In that sense, the real significance of the retrenchment is that it precipitated the present psychological collapse of the plaintiff that has rendered him essentially unable to work since that time.

506 In this sense, whether the retrenchment was caused by the effects of the abuse upon the plaintiff or not, the combination of the retrenchment and the effects of the abuse rendered the plaintiff unable to work in the period from mid-2019 to the present.

507 By contrast, absent the abuse, it seems to me to have been likely that the plaintiff would have obtained and been working in replacement senior employment during that period. In that regard, by about 2016 the experience and expertise of the plaintiff was evident in the senior positions that he had held and his evident value in the employment market was underlined by the fact that he was headhunted to take on senior employment with Treasury Wine Estates in September 2017. At that time he was also relatively young. In the circumstances, do not consider it to be likely that, absent the effects of the abuse, the plaintiff would have been out of senior work for any significant or extended period after his retrenchment in mid-2019. Nor did the defendant really take such a point in submissions.

508 For these reasons, I would award the plaintiff a total of four years of earnings at a senior level for his past loss of earnings as a consequence of the negligence of the defendant, being essentially two years relating to the period prior to mid-2019 and another two years for the period subsequent to that and to the present.

509 By 'earnings at a senior level', I mean earnings at the level of the position that the plaintiff ultimately held at Treasury Wine Estates prior to his retrenchment, namely about $240,000 per annum (plus superannuation). That figure is broadly consistent with the trajectory of the plaintiff's annual earnings prior to that time,[292] and also sits with the kinds of figures referred to in some of the earnings data to which Mr Thompson was taken in his evidence.[293]

510 On my analysis, absent the abuse, it is more likely than not that the plaintiff would have ascended to such a position and at least such earnings four or more years earlier than he in fact did, and would also have obtained and remained in replacement employment at about that level very shortly after his retrenchment in mid-2019 and until the present.

511 As I have indicated earlier, however, the present assessment simply involves evaluating several hypothetical and incommensurable possibilities, the more significant of which I have identified above. To those should be added further possibilities such as that the time lost prior to mid-2019 by reason of the abuse could have been more than four years as well as the fact that the assessment for the past includes no allowance for the periods which the plaintiff spent out of work after he finished with Diageo or any specific allowance for earnings between mid-2021 and the date of this judgment.

512 Such an evaluation must also take account of the possibility that the plaintiff's earnings in at least the period from mid-2019 to mid-2021 could have been higher than $240,000 per annum (plus superannuation).

513 Overall, in my view, all of these possibilities are best accommodated and compensated by an award for the past of four years of earnings at $240,000 per annum (before tax) plus superannuation.[294]

514 It follows that damages for past economic loss should be calculated as follows:

(a) For the period to mid-2019: two years at $240,000 per annum before tax, being $480,000 in substitution for and thus less two earlier years of earnings during the 'lost' period between 2001 and 2004, namely $54,849,[295] less tax of $137,781.95,[296] being $287,369.05, plus superannuation of $35,704,[297] being a total of $323,073.05;

(b) For the period from mid-2019 to mid-2021: two years at $240,000 per annum before tax, being $480,000, less tax of $162,194,[298] being $317,806, plus superannuation of $35,704, being a total of $353,510;

(c) Total: $676,583.05.

515 Moving to consider the future, having regard to the plaintiff's evident aptitude for the sales and management work that he ultimately settled into after late 2004, I would think that, absent the abuse, his career would likely have continued in management work of that general kind until about normal retirement age.

516 Inasmuch as the plaintiff gave any evidence of that kind at trial, it was given more in passing.[299] Nothing really turns upon that, however, as such evidence often has the appearance of being rather artificial or, at least, no more than formal in nature.

517 In any event, I have regard to the fact that the plaintiff's brothers and his wife are in essentially professional employment and that his general social milieu is one involving private school fees, private golf club membership, regular holidays and other features of middle class life that can commonly impose financial requirements until that time.

518 In that, I have not overlooked the reliance by the defendant upon certain statistics and the endeavours to cross-examine Ms Parkes with a view to establishing a general trend to early retirement (which was not really established in the answers given, as opposed to the questions asked).

519 Notwithstanding such evidence as ultimately came to be adduced on the point, however, I tend to think that the direct presentation of the plaintiff is presently of greater significance, and upon that I would consider it more likely that he would have worked to about normal retirement age.

520 Against that, however, particularly having regard to the fact that his wife is slightly older than him, I do not overlook the residual possibility that the plaintiff would not have worked until shortly before normal retirement age. In my view, that is a specific possibility that, together with others, is better accommodated below in the assessment of an overall discount for vicissitudes.

521 The next question is the likely 'trajectory' of the plaintiff's career beyond 2019, absent the abuse. The contention advanced on behalf of the plaintiff was that at some point he would have progressed beyond, in effect, middle management, and to a position as a director of sales in a company akin to Diageo, Lion or Treasury Wine Estates. The contention was that in such a position, and for several years, the plaintiff would have earned in the vicinity of $300,000 per annum.

522 The foundation for that submission owed much to assertions about natural aptitude and 'innate intelligence', but might also be thought to derive some support from the general trajectory of the plaintiff's career and earnings prior to mid-2019.[300]

523 That said, I did not obtain any strong sense from the evidence of either the plaintiff or his wife that such a position was either his or their 'dream' or firm objective. I am conscious that the plaintiff was 'jealous' of the career success of his brothers, and one of them has held a very senior management position for some years, however absent something a little more persuasive I am not at all sure that the career 'trajectory' of the plaintiff would likely have contained that step. I am also conscious, in a broad sense, that more senior positions are fewer in number and more likely to be difficult to obtain and maintain.

524 In my view, based on the overall impression conveyed by the evidence received, it seems to me to have been more likely that the plaintiff would have remained in management positions of the kind that he held in the years leading up to 2019 and then beyond that to about normal retirement age. That kind of profile is amply supported by the kind of earnings he achieved in the years prior to 2019 and their evident trajectory.[301]

525 It follows from that absent injury I would have expected that the plaintiff would have reached the kind of seniority, responsibility and level of earnings that he occupied in 2019, albeit some years prior to that, and then broadly maintained that kind of career and associated earnings profile to about age 67, namely in 2042.

526 On that basis, I accept that Mr Thompson's 'Scenario 1' - namely $250,000 per annum before tax - is the most appropriate measure of the plaintiff's likely earnings into the future absent injury.

527 Against that, as I have mentioned, it was in 2019 that the plaintiff's 'façade' was finally 'shattered'. From that point, and at present, he appears as something of a 'shell'. In this regard, I accept the evidence that he presently could not work. The contrary is unimaginable to me - having seen the plaintiff routinely sobbing in the course of his evidence - and was not really suggested by the defendant.

528 The defendant suggested that the plaintiff was likely to return to work in two or three years and, from that point, was likely to return into work at about the same level of seniority, responsibility and stress that he endured in the period of years prior to 2019.

529 I do not accept either of those submissions. I accept the evidence of Dr Tagkalidis to the effect that the plaintiff will hereafter remain vulnerable, particularly to stress. I consider it to be most unlikely that he will return to work in any kind of senior executive position.

530 Nor can I envisage him returning to work within only two or three years. That seemed to be the very minimum period envisaged by Dr Tagkalidis. The thrust of Dr Tagkalidis' evidence seemed to be that a longer period was more likely and, indeed, his 'best guess' was ten years from now.[302]

531 Against that must, of course, be balanced the evidence of the plaintiff's wife and, for that matter, his brothers. His wife, whose view it would be evident I would afford considerable weight, was doubtful that he would return to work. She thought that it would take a 'miracle'. That view was obviously very affected by his present presentation, which I also saw, and to which I would also afford weight.

532 The plaintiff is intelligent, practical and possessed of both ability and valuable corporate experience. He is also a relatively young man, at 46 years of age. His brothers are in successful and established employment, as is his wife. His children are at private school. As I have noted, he has other trappings of middle class life. If he could work, I imagine that he would. When he can return to work, I imagine that he will.

533 This is no more than to say that I would reject any suggestion that the plaintiff is choosing not to work. Nor do I think that he will either choose permanently not to work or not ever return to the workforce.

534 Put simply, despite the fact that he is presently in something of a 'heap', the opinion of Dr Tagkalidis was that the plaintiff's presently acute psychological condition may well 'attenuate' in the longer term and, beyond that, it is essentially my own assessment having seen him give evidence that the plaintiff is not really the kind of person who will permanently remain out of the workforce while those around him are doing meaningful work. That said, I obviously accept that he is and will remain damaged by the abuse.

535 It would be evident that I would accept the general effect of the estimation in oral evidence expressed by Dr Tagkalidis to the effect that 'from four to five years out to ten years I think the chances [of the plaintiff returning to work] slowly increase'.[303]

536 On that view, perhaps having regard to some of the factors earlier referred to, together with the likely entry of his daughters into senior years of school and therefore their greater independence, I would think that it is reasonable to consider that the plaintiff is likely to return to work roughly 6 years from now, namely in about mid-2027. At that point, the plaintiff would be in his early 50s and may well be thought still to have plenty to offer an employer.

537 By the same token, I would also think that it is likely that he would assume a position in sales and in a product area of familiarity to him. I could not see him returning to a position of significant interpersonal stress of the kind that is part and parcel of a position in senior management and perhaps in any kind of management of staff. As Dr Tagkalidis put it, it is most likely that the plaintiff would return into a position of 'lower level, less stressful work'.[304]

538 The evidence of Mr Thompson proffered essentially two alternative scenarios, concerning the plaintiff's return to work, namely 'Approach A' being $80,000 per annum (plus superannuation) and 'Approach B' being $120,000 per annum (plus superannuation).

539 In oral evidence, Mr Thompson explained the former 'approach' as directed to 'a sales representative type position that would be, someone who's direct selling to customers' and the latter 'approach' as directed to 'someone with some more responsibility than simply selling to customers'.[305]

540 That evidence was broadly consistent with plaintiff's earnings in the positions that he held with Diageo and then later with Lion Dairy & Drinks.[306]

541 In light of the evidence of Dr Tagkalidis, and, indeed, the fragility of the plaintiff so evident in the course of his evidence, I consider 'Approach A' to be the more likely and therefore the more appropriate.

542 On that basis, I would assess damages for future loss of earning capacity on the basis of Mr Thompson's Schedules "M" and "U", namely -

(a) Future economic loss: $1,824,888;

(b) Future superannuation: $218,856;

(c) Total: $2,043,744.00.

543 To that figure must be applied a reduction for vicissitudes. The parties were also in dispute about that issue and, indeed, the defendant contended for a further and 'very significant' reduction specifically by reference to Malec v Hutton.[307]

544 In my view it is unnecessary to distinguish between discounts based on Malec or for the vicissitudes of life. It is practical simply to start with the 'usual' discount of 15% mindful of some of the specific possibilities that have I have referred to in the evidence.

545 In that regard, there is the specific but residual possibility that the plaintiff would have worked to slightly short of normal retirement age. Other specific risks arise from the plaintiff's area of work and career path. I am conscious that the kind of sales and managerial career on which the assessment for the future is premised tends to be punctuated by more than the normal movement between positions and employers together with incidents of redundancy that each carry specific risks of periods of unemployment. The career progress of the plaintiff between 2005 and 2019 essentially shows as much. By reason of those specific uncertainties, I would apply a discount for vicissitudes that is a little higher than the usual, namely 20%.

546 On that basis, the sum assessed for future loss of earning capacity is $1,634,995.20.

547 Upon the reasoning to this point, such minor dispute as existed between the parties concerning the claims for past and future medical expenses should be determined in favour of the plaintiff.

548 There was no dispute about the past repayment in the sum of $1,361, and that item should be accepted.

549 The defendant also accepted the items concerning sessions of psychological treatment.

550 It resisted the claim for sessions of psychiatric treatment and anti-depressant medication. It made the point that such recommendations have not come from a treater. I should say that I am also conscious of the plaintiff's evidence that he is wary of taking such medications.

551 That said, I am inclined to allow those items. The presentation of the plaintiff is such that a need for psychiatric assessment and treatment is quite foreseeable and in that setting anti-depressant or other such medication might well be prescribed. I could not conclude that in that event it would necessarily follow that the plaintiff would not incur the expense and take the medications recommended.

552 In the circumstances, I would allow the plaintiff's claims for past medical and like expenses in the sum of $1,361 and for the future in the sum of $19,380.[308]

553 In light of the above, I assess damages as follows -

(a) Pain and suffering - $300,000;

(b) Past loss of earnings - $676,583.05;

(c) Future loss of earnings - $1,634,995.20

(d) Other/medical and like - $20,741.00

Total - $2,632,319.25.

554 The plaintiff suffered childhood sexual abuse as a consequence of the breach by the defendant of the duty of care owed to him as a student.

555 That abuse has had very significant psychiatric effects upon the plaintiff across his life and will continue to have effects upon him very likely for the rest of his life.

556 I have assessed general damages and damages for loss of earning capacity and medical and like expenses accordingly.

557 It follows that there will be judgment for the plaintiff for damages as assessed.

558 I will hear counsel concerning the form of orders, and costs.

[212] [1996] HCA 25; (1996) 186 CLR 541, 551-555.

[213] Graham v State of New South Wales [2001] NSWCA 248; (2001) 34 MVR 198; The Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Reports 81-339 ('Koffman'); Bradford-Smart v West Sussex County Council (2002) EWCA Civ 07.

[215] Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552.

[219] [2015] VSC 499.

[220] [2006] HCA 19; (2006) 226 CLR 161, [26]-[28].

[222] [2019] VSCA 237.

[223] [2007] NSWCA 106.

[224] Malec v Hutton (1990) 169 CLR 638 ('Malec').

[229] Prince Alfred College Incorporated v ADC [2016] HCA 37; (2016) 258 CLR 134 ('Prince Alfred College').

[233] Prince Alfred College (n 229), [81].

[234] [2020] NSWSC 1379 ('A & B').

[235] [2006] HCA 19; (2006) 226 CLR 161 ('Sweeney').

[236] [2006] HCA 19; (2006) 226 CLR 161.

[237] Defence dated 25 June 2020, [2](c) & [6](b).

[238] [1980] HCA 12; (1980) 146 CLR 40. See also, State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486.

[239] [1980] HCA 12; (1980) 146 CLR 40, 7-48.

[240] With particular reliance placed upon the considerations referred to by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 551-555.

[243] And, for that matter, the evidence of Mr Baldwin-Cole concerning the regularity and open nature of the touching and like abuse perpetrated upon him by Palframan in the woodwork room over a significant period of time.

[249] There might be said to have been a form of indirect challenge to this evidence, via suggestions concerning a history said to have been given to Mr McMullen, psychologist. The plaintiff could not recall what was discussed: T267. Also, in written submissions, the defendant contended that it was of 'particular importance' that the plaintiff did not adduce evidence from the boys who first accompanied him to the House of Guilds. It was said that it 'can be inferred that their evidence would not assist the Plaintiff on critical matters concerning the alleged conduct of Palframan in the House of Guilds'. As I have indicated, there was no direct challenge to the plaintiff's evidence concerning the extent of the abuse perpetrated at the House of Guilds. The submission that any such inference should be drawn is rejected. Indeed, any such indirect challenges in respect of the plaintiff's evidence concerning the location and extent of the abuse in the House of Guilds are insufficient to cause me not to accept the plaintiff's direct evidence of it, particularly in light of the some of the similarities between his evidence and that of Mr Baldwin-Cole concerning the brazen nature of the abuse undertaken by Palframan on the premises of the House of Guilds.

[250] Outline of closing submissions on behalf of the defendant, [1](a).

[251] Koffman (n 213), Graham v State of New South Wales [2001] NSWCA 248; (2001) 34 MVR 198, Geyer v Downs [1977] HCA 64; (1977) 138 CLR 91 and Bradford-Smart v West Sussex County Council [2002] EWCA Civ 07.

[252] Hahn v Conley [1971] HCA 56; (1971) 126 CLR 276.

[253] No such inference was sought in relation to the failure of the plaintiff to call his mother. On the evidence, the plaintiff's mother is presently ill with Parkinson's disease. See outline of closing submissions on behalf of the defendant, [3].

[255] Outline of closing submissions on behalf of the defendant, [9].

[256] Koffman (n 213), Graham v State of New South Wales [2001] NSWCA 248; (2001) 34 MVR 198 and Bradford-Smart v West Sussex County Council [2002] EWCA Civ 07.

[257] Geyer v Downs [1977] HCA 64; (1977) 138 CLR 91.

[261] The Oropesa [1943] P 32, 37.

[262] Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, 529-530.

[263] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 518-519.

[267] Outline of closing submissions on behalf of the defendant, [127].

[273] I do not overlook the evidence to the effect that at some point the plaintiff and PCC had a 'break' prior to re-uniting and ultimately marrying in January 2007. It is not clear exactly when the 'break' occurred, although whenever that was it remained the evidence that PCC had very much encouraged the plaintiff to commence upon the change of career path and he was determined to do so because he did not consider the pub work to be 'sustainable' and wanted his relationship to work - see, T115-116.

[289] [2019] VSCA 237.

[290] I do not here overlook the evidence of the plaintiff at T78 concerning his cricketing dreams. The point is that such evidence, as I understood it, was not put forward as a firm career aspiration, and no such evidence was given concerning any other early academic, career or professional aspiration.

[292] Exhibit L. See also, evidence of Mr Thompson at T555.

[294] Having regard to the manner in which the lost chances of the plaintiff have been evaluated and assessed, it is unnecessary to make any further discount for the past based in the 'vicissitudes of life'.

[295] Being for the years 2003 and 2004 recorded in Exhibit L, noting that those figures were adjusted by Mr Thompson and so are not 'actuals' and are also the two 'best' figures to reduce from the perspective of the defendant, which adds to the reasons why it is inappropriate to make any further reduction for vicissitudes.

[296] Exhibit 13. Assessed in the period 2016 to 2018.

[297] Being twice the notional figure for superannuation relating to the 2019 year on which salary the figure of $240,000 per annum is broadly based - see, Exhibit W, Schedule "K".

[298] Exhibit 13. Assessed in the period 2019 to 2021.

[306] See, summary references in the Outline of closing submissions on behalf of the defendant, pp.33-34.

[308] The latter figure is reached by accepting the plaintiff's claimed figure of $22,800 and then discounting for vicissitudes by 15%. It seems appropriate to apply the standard discount in respect of an item more likely to be incurred in the short to medium term future.