Plaintiff v Defendant [2021] VSC 850 | Case summary

Wrongs Act 1958 (Vic)Plaintiff v Defendant [2021] VSC 850 | Case summary | Zoe

[186]

Three recent decisions of this Court have examined questions of vicarious liability: Scott v Davis, Hollis v Vabu Pty Ltd and New South Wales v Lepore. It is unnecessary to rehearse all that is established by those decisions. It is important, however, to begin examination of the issues in this appeal from a frank recognition of some considerations that are reflected in those decisions. First, "[a] fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law". Secondly, "the modern doctrine respecting the liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy". That may suggest that the policy to which effect was given by "the modern doctrine" is clearly identified, but, as is implicit in the first proposition, the policy which is said to lie behind the development of the modern doctrine is not and has not been fully articulated. Thirdly, although important aspects of the law relating to vicarious liability are often traced to the judgment of Parke B in Quarman v Burnett, neither in that decision, nor in other early decisions to which the development of the doctrine of vicarious liability may be traced, does there emerge any clear or stable principle which may be understood as underpinning the development of this area of the law. Indeed, as is demonstrated in Scott, the development of the law in this area has not always proceeded on a correct understanding of the basis of earlier decisions.

Nonetheless, as the decisions in Scott, Hollis and Lepore show, there are some basic propositions that can be identified as central to this body of law. For present purposes, there are two to which it will be necessary to give principal attention. First, there is the distinction between employees (for whose conduct the employer will generally be vicariously liable) and independent contractors (for whose conduct the person engaging the contractor will generally not be vicariously liable). Secondly, there is the importance which is attached to the course of employment. Whether, as has recently been suggested, these, or other, considerations would yield a compelling and unifying justification for the doctrine of vicarious liability need not be decided in this matter. In particular, whether, as suggested, the justification for the doctrine of vicarious liability is found in an employer's promise in the contract of employment to indemnify the employee for legal liability suffered by the employee in the conduct of the employer's business is a large question which is better examined in the light of full argument.[78]

[435]

Counsel: And you mentioned, I think, as I've understood your evidence to date, you've mentioned two, at least two types of abuse. One was in the classroom when she, when would ---?

DP: Well she would... walk up behind - I sat in a desk by myself at the front near the door of the classroom and she would come from the back of the room - I was never allowed to sit with anybody else for some reason - and she would walk up behind me, crack me over the back of the head for no reason sometimes, then she had a thing of throwing blackboard dusters at me as well, and then she'd come sometimes, grab me by the ear, drag me outside, made me sit down on a seat outside and tell me to stay there and I, at the end of it, I, as a child, I got jack of it. One day I ran away from school and I ran over to the shelter shed and I hid in the little cracks of the boards in the shelter shed, the weather boards, and I could see her out looking for me out in the yard and I felt like I was, she was like a predator looking for me in the yard so I hid between the jumping bags from the sports equipment and then, anyway, when she went - because we only lived a few doors from the school, she went up to my mother and said that I was missing. So my mother was driving around town looking for me madly everywhere to find me and when lunchtime came I emerged out of between the beanbags in the shelter shed, started to walk down the street towards home, then [the teacher] appeared from behind the hedge that used to be near the front of the school where the old convent used to be positioned before it was moved and she appeared out from behind the hedge and I remember I had shorts on and she cracked me over the legs so hard and told me to get home, "Your mother's been looking for you", and so I went home and then I copped... a mouthful of abuse off my mother. You know, she said, "I've been around town looking for you everywhere", rah rah rah, "why are you doing this?", and I said because I'm just over it, the abuse I was getting off [the teacher]. And then... I said to her, "Can you do something?" She said, "No, I can't do anything", she said, you know, "because I don't want to go up and confront her" because being a Catholic school, and so I just lived with the physical abuse.[241]

Counsel: This behaviour towards you, was it constant over the two years was it intermittent, or what?

DP: Yes, it was constant over the two years, that's correct.

Counsel: There was another incident that's been referred to that happened at a school camp?

...

DP: At the camp, yep, okay, I'll give you the cabin - a couple of incidents. We used to go for mountain walks and if we were slow at the back she would come up and crack you over the back of the legs to make you walk faster. Then she - I was in a cabin with, there might have been five or six other boys in the cabin, and it was a bunk cabin with bunks down one side, bunks the other side, and I had the front bunk near the door of the cabin. And she - and anyway, the boys, as boys are, the boys got one of the boys down the back of the cabin at night about, would have been ten o'clock, 11 o'clock at night, and [the teacher] was doing her patrols along the cabin and the boys said to me, 'Oh we're going to belt up' - I forget, I think it was [another student] if I remember - 'we're going to belt up him down the back. You keep an eye out the door to see if [the teacher's] coming'. So me being silly in my little bunk near the door, I opened the door and she was standing there, so I slammed the door in her face like this and she came in the door and she didn't go to the boys down the back of the cabin, she just jumped on me and just smacked me across the front of the head and jumped on me, you know, like whack, whack, whack. The boys got away with it at the back of the cabin. I could never figure it out.[242]

[438]

2. I grew up in Port Fairy and was raised in William Street only a few doors from the school. I was raised in a strict Catholic household; we went to church every Sunday. My childhood was straightforward and quite normal. I suffered from severe asthma as a young child and was absent from school for much of grade prep ...

4. This present complaint concerns a number of incidents of severe corporal abuse and brutality perpetrated by a lay teacher [name removed] whilst I was a grade 5-6 student, between 1976-1977, when I was approximately 10 to 11 years of age.

...

She treated me quite abusively and victimised me from the outset. She singled me out and would often yell at me and I was made to sit by myself rather than share a desk and made to sit in front of the class alone nearest the door for no good reason. She would regularly clip me over the head/ears and threw feather dusters at me ...

Over time, I developed a severe anxiety due to her abuse towards me. On one occasion I became so fearful that I ran away from class and hid in a shelter shed. Eventually [the teacher] discovered me and she struck me on the head and legs and sent me home from school. In fact, I became so fearful and anxious that I abandoned school every Friday after lunch for an entire term go home and hide under the bed in the front room so no one can find me.

5. I recall another occasion when I was at school camp at Halls Gap in 1977 ... Unbeknownst to me, [the teacher] was standing and listening at the door and she suddenly burst into the cabin and verbally abused and belittled me in front of my mates, whilst I lay in my bunk. On another occasion, she burst in unannounced in the boys' showers and disciplined some children. Over time, I become so fearful and anxious of her psychological and corporal abuse that I tried to avoid school. I felt I was under contact [sic] surveillance and was pressured by her. This school avoidance continued even after I left St Patrick's Primary School. I was put off schooling altogether and went truant for a number of years. Owing to my truancy and absenteeism I was eventually transferred to a local community school. Even though I was an average student I was often placed in remedial classes. As a young, adolescent high school student because of my abusive history at the hands of [the teacher] I developed a tendency to avoid school for fear of being abused and getting into trouble.

...

7. I was not coping. I became depressed and was diagnosed with depression and anxiety in 2006. I take antidepressant medication. I continue to suffer from low mood and poor motivation, as well as low confidence and self-esteem. I fear confrontation. I have been regularly consulting with a psychologist since mid-2013. I have been receiving a Centrelink Carers benefit since 2008. I suffer from high blood pressure. I also suffer from severe headaches and the most lightest bit of stress and have very bad nerves that cause me to tremble.

8. Though I have been in a long term friendship, and have a small circle of friends. I generally have social anxiety and tend to keep mostly to myself. Because of my lack of confidence, I have been unable to form and maintain new relationships. I have some limited contact with my older sister, [deleted] who lives in Geelong. I have not kept in touch with my other siblings. I feel I have potential but I have underachieved owing to my negative experiences at primary school. I believe I have not fully realised my potential. I wish I could turn back the clock.

9. As for my desired outcomes from this current process, I feel I would like to achieve the following:

* A formal apology and acknowledgement, and sense of justice being done in this matter.

* I would like someone from the Sisters of the Good Samaritan to take responsibility for what happened to me whilst at St Patrick's Primary School in Port Fairy. I would like some formal acknowledgment and apology about what took place and acknowledgment of the impact it has had on me, so I can obtain some sense of closure and moving forward.

* I would like the Church to fund my ongoing psychological treatment (my Medicare funding has expired for 2014); I would also like the Church to refer me and to fund formal psychiatric assessment and treatment.

* Though I firmly believe that money cannot compensate for the abuse I was subjected to, I nevertheless believe I have some entitlement to an offer of financial compensation and restitution from the Sisters of the Good Samaritan. I continue to suffer financial hardship and ongoing mental stress as well as being on a Centrelink benefits [sic].

* I expect the Sisters of the Good Samaritan/Church to exercise compassion and understanding towards me in assessing this complaint.[244]

[457]

Assessment

- 296.32 Major Depressive Disorder

- Recurrent, Moderate 300.40

- Persistent Depressive Disorder 300.01

- Panic disorder 300.22

- Agoraphobia (chronic)

- Substance Use Disorder

- Alcohol Use Disorder (History of ages 16-30)

- Substance Use Disorder

- Stimulant Use Disorder

- Drug Abuse (History of, ages 20-22)

- Morbid Obesity

- Hypertension

... At initial interview, [DP] reported that he had been subjected to "childhood abuse and isolation" while a student at St Patrick's Primary School, Port Fairy.

Relevant History

[DP] was born [DP] and had his name changed by deed poll in 2006 (mother's second name). He is the youngest born of 5 siblings. He has two sisters Sandra and Rhonda, 6 and 12 years older, and a brother Brendan, 13 years older. The latter resides in Western Australia, his sister Kaye, who was 11 years older, was deceased on March 21 2013 subsequent to a brain tumour. She worked for Telstra. He learnt of the tumour when the operation was problematic and she died 3 days post-surgery. He spent his childhood years in Port Fairy. He reported that his parents were strict Catholics and that he attended church on Sundays; otherwise it was a relatively normal early childhood.

He suffered severe asthma throughout grade prep and missed much of the school year due to ill health. He ceased attending school in year 10. [DP] parents died in a car accident whilst on holidays on March 19, 1985 on the Sturt highway when he was 19 years of age and one of his sisters Kay died some years later. [DP] reported that he felt somewhat neglected during his childhood. He maintains some anger about his parents not having protected him from the teachers abuse outlined below and that he was often left on his own at home. [DP] reported that his parents were compliant Catholics who did not question the church.

Treatment

Cognitive behavioural therapy (CBT) and interpersonal therapy (IPT) are effective for symptom treatment of patients with the disorders named and research indicates that schema therapy and Eye Movement Desensitisation and Reprocessing (EMDR) can be effective in the treatment of adults with histories of childhood trauma. The rate of relapse/recurrence of symptoms has been shown to be reduced by long-term treatment with antidepressant medication and with long-term use of specific psychotherapies. In addition, it is strongly recommended that [DP] also receive schema therapy.

Please do not hesitate to contact me should you wish to discuss your client's condition or treatment further, or if I can assist in any way. [251]

[484]

Since the abuse, [DP] has had psychosocial difficulties. In the aftermath he became much preoccupied with the abuse and at school he had difficulties with learning and socialising. These are typical post traumatic symptoms following childhood sexual abuse (Blanco et al, 2015; Cook et al, 2017; Canton-Cortes et al, 2012; Finkelhor et al, 1987; Shapiro et al, 2012).

Other factors may have contributed to his learning difficulties, including his asthma, which led to a lot of time off school. There may have been premorbid temperamental factors that contributed to his early difficulties with socialising. However, the abuse occurred at the very start of [DP]'s school life so there was not an established developmental trajectory that can be compared with his post abuse development.

Later in childhood, [DP] suffered some homophobic teasing at school, which intensified his social withdrawal and so set up a vicious cycle. As a pre-gay boy, he may have been vulnerable to some teasing but, equally, having suffered sexual abuse would also have rendered him highly vulnerable in that regard (Day et al, 2016; Espelage et al, 2019; Espelage et al, 2018a; Poteat et al, 2007; Tucker et al, 2016).

In later childhood and adolescence, [DP] suffered sexual identity issues; again, this is entirely typical: childhood sexual abuse creates a sense of stigmatisation (Finkelhor et al, 1987) and can lead to sexual identity confusion, especially in boys (Aaron, 2012; Kia-Keating et al, 2005; Lisak, 1994; o'Leary et al, 2017). Such confusion is sufficient to trigger peer victimisation and exclusion, which greatly magnifies the sense of stigmatisation. This was certainly the sequence of events that derailed [DP]'s development. In my view, the abuse was the most critical factors in this, or at least a major factor.

The punitive school environment added to [DP]'s difficulties: there he suffered both physical and emotional abuse. Because of this and because of Coffey's close connection with it, he became alienated from school and wanted only to escape (Hyman et all, 2003; Morinaj et al, 2019). The intervention of his parents, involving a threat from police, only intensified his alienation, anxiety and sense of stigmatisation and need to escape. This aversion to or alienation from school generalised to other educational settings so that further education or training became impossible for him.

In his early years of employment, [DP]'s post traumatic symptoms of avoidance, social withdrawal; and his sense of difference or stigmatisation, blocked progression in his career path and intensified his sense of failure. At this time the sudden death of his parents caused a great upheaval in his life, compounded by the lack of support from his siblings and the recent death of a partner. Notably, [DP] reported these dramatic events with manifest detachment and numbing that are particularly characteristic of trauma (Asmundson et al, 2004; Feeny et al, 2000).

From his teenage years, [DP] was using substances to reinforce post traumatic numbing and avoidance. This is a typical outcome in abused youth. In recent years he has been able to limit these problems.

(b) If so, what was that condition or conditions?

Complex Post Traumatic Stress Disorder (CPTDSD)

Chronic Anxiety Disorders: Social and Agoraphobic

Chronic Depressive Disorder

Enduring (Post Traumatic) Personality Change

Fundamentally [DP] suffered "complex trauma" in his childhood: the sexual abuse of Coffey; the physical and psychological abuse of [the teacher]; a general punitive school context; and peer harassment. It appears also that his family environment was problematic: his parents were perhaps not optimally available psychologically and his father's parenting style was somewhat harsh. Complex trauma is defined as multiple traumas that have a cumulative impact (Cloitre et al, 2009, 2013, Putnam et al, 2013).

Complex trauma becomes manifest as Complex PTSD, a combination of simple or classical PTSD with the added features of disruption in the domains of affect regulation, relationships, and self organisation (ICD criteria). This has occurred with [DP]; he began to develop these symptoms in the post abuse period and over time they have either persisted or have developed into the characteristic CPTSD profile.

[DP] presents typical PTSD symptoms; hyperarousal with anxiety, insomnia, heightened reaction to cues; reliving with intrusive preoccupation and rumination; avoidance phenomena with numbing, dissociation and withdrawal; a sense of helplessness, hopelessness and foreshortened future.

[DP] also presents the typical profile of complex trauma: affect dysregulation with anxiety and depression; difficulties with interpersonal relationships; and a pervasive sense of shame and a disorganised self.

Comorbidity

Depression and Anxiety are frequently comorbid with PTSD and may be regarded as part of the PTSD complex (ICD criteria) or as separate comorbid conditions. In this case, [DP]'s anxiety is extremely prominent and disabling and in my view warrants separate consideration. Similarly, his depressive condition is particularly chronic and entrenched and will also be considered separately.

Chronic Anxiety Disorders: Social and Agoraphobic Anxiety

Since the time of the abuse, [DP] has suffered from severe social anxiety and has had difficulties with relationships, including socially, in the workplace, and in terms of intimacy and sexual relatedness. Consequently, he has pursued an avoidant adjustment throughout his life.

The sexual abuse and then the abuses [DP] experienced at school, led to difficulties with learning and attention, and to feelings of guilt, shame and self blame and to alienation from or aversion to school and thence to truanting. By secondary school his difficulties had reached the intensity of phobic anxiety with an intense need to escape the situation. This brought an end to school and to further education and continued then to compromise his employment prospects throughout his adult life.

Currently [DP] suffers from severe anxiety in most situations of interpersonal relating but most especially in social situations or interacting with strangers. He avoids these situations and so leads an isolated life. At the same time, he suffers prominent numbing and dissociation as part of the PTSD profile so that his manifest distress is understated.

Depressive Disorder

[DP] suffers from chronic depression, manifest as persistent depressed and irritable mood, insomnia, loss of drive and motivation, depression rumination, suicidality and sense of hopelessness and of foreshortened future.

Enduring Personality Change/Avoidant Personality Disorder

The symptoms of chronic and complex PTSD became entrenched over time and irreversible and are then described as "enduring personality change" (ICD criteria). Thus, [DP] presents the characteristic features of: a mistrustful attitude towards the world, edginess and sense of estrangement or alienation. However, the avoidance phenomena that are a central feature of PTSD, have become so entrenched and are causing such impairment that they also constitute an Avoidant Personality Disorder. This is not uncommon: the symptoms of chronic social anxiety overlap with those of avoidant personality (Cougle et al, 2010), hence they also reflect enduring personality change.

The features of Avoidant Personality Disorder are manifest in [DP] as: feelings of tension and apprehension, insecurity and inferiority; hypersensitivity to rejection and criticism with restricted personal attachments, avoidance and overestimation of potential risks in everyday situations.

Sexual dysfunction

At present, [DP] has no interest in sex with his partner but has occasional binges of a casual nature. His preference for sex with older men may be related to the abuse and may signify vulnerability to revictimisation (Finkelhor et al, 2009 2011). Notably his first sexual relationship was with an older man and [DP] was only 14 when that began. He reports this with little affective response that indicates numbing or detachment, which is a post traumatic phenomenon and, notably, is associated with a risk of revictimisation (Ghmire et al, 2012; Risser et al, 2006).

While he was living in the small community of Port Fairy, [DP] had difficulties coming to terms with his gay identity but after moving to Melbourne and then Sydney it has become less of an issue in social terms; however, it remains an issue in terms of his sense of self and stigmatisation.

Substance abuse

During his 20s, [DP] had a period of severe drug abuse and some alcohol abuse but mostly this is no longer an issue. He also had a long period, 13 years, of drug dependency in relation to Duromine (phentermine), an appetite suppressant with powerful addictive properties. This too is no longer an issue. Thus, substance abuse is not currently a problem for [DP] but his history, plus his occasional gambling, indicate a vulnerability to addictive behaviours.

(c) If he does have a condition or conditions, has the abuse had a material contribution to its or their cause?

As has been detailed already, the sexual abuse was a fundamental issue that made a material contribution to [DP]'s lifelong difficulties. There was then a cascade of events that served to intensify his symptoms of anxiety and his avoidant behaviour and his difficulties with trust and his interpersonal relationships. Those events included childhood asthma, physical and psychological abuse at school, including peer harassment; the death of his parents and lack of support from his family at that time; and the death of his sexual partner also around that time. As a pre-gay boy and a child with severe asthma he was particularly vulnerable to trauma (Burlew, 2014). Similarly, it seems that his family context was not optimal and this too would have heightened his vulnerability (Fleming et al, 1997).

Complex trauma refers to multiple traumas, particularly in childhood, and particularly involving sexual abuse, and it is cumulative and additive, meaning that the ultimate impact is greater than the sum of the individual events (Briere et al, 2015, 2016; Putnam et al, 2013). It is evident that this would apply to [DP].

Throughout his school years, [DP] experienced learning difficulties including inattention and daydreaming. Complex trauma and anxiety and depression, childhood illness (asthma) and pre-gay identity issues are all associated with cognitive difficulties, so it is possible that [DP]'s problems in this regard are chiefly or even entirely post traumatic phenomena. However, there may also be a pre-abuse developmental factor in this.

(d) Have any of the psychiatric conditions or symptoms caused by the abuse had an adverse effect on his education, or on his capacity to function in the workplace, or to seek advancement in his career. If so, in what way?

[DP] was unable to continue his education beyond the School Certificate and this difficulty was chiefly a consequence of his progressive alienation from and aversion to the school environment, because of the abuses he had suffered in that context. This remained a lifelong problem so that he was never able to return to education. He has continued to fear and avoid relationships and, as a consequence, has had difficulty maintaining employment. In particular his severe social anxiety greatly limits his capacity for dealing with people in a face to face situation.

(e) Have any of the psychiatric conditions or symptoms caused by the abuse had an adverse effect on his social and personal relationships? And if so in what way?

[DP] has had unusual relationships throughout his life. His first sexual partner was an older man and this may reflect the abuse issues or it could relate to what appear to have been parenting issues (Durrant et al, 2012; Meyerson et al, 2002). Then his only long term relationship, with his current partner, is one in which [DP] functions as carer and it has become platonic, while [DP] has a preference for casual sex with older men. This latter pattern is likely to reflect his experience of abuse and, as noted earlier, it may be related to post traumatic numbing and a tendency to victimisation. Also, male survivors are more likely to develop sexual disorders that may reflect the nature of their abuse (Dhaliwal et all, 1996).

(f) Has he required medical treatment for conditions or symptoms caused by the abuse?

Currently [DP] is taking antidepressants prescribed by his GP and is receiving psychological treatment from Dr Pagano in relation to the abuse. This therapy has addressed the abuse only recently. In the first years of his relationship with Dr Pagano, [DP] did not disclose details of the sexual abuse. This is a typical avoidance in male survivors, it reflects that shame that is almost universal, and it is a barrier to help seeking (Easton et al, 2014; Romano et al, 2019), as has been the case with [DP]. Similarly, he had a short period of counselling when he was working for the tramways but again focused on his difficulties in relating to the public.

(g) Does he require medical treatment in the future and if so, what is the likely nature, and cost of such treatment.

In order to ameliorate his symptoms and his avoidant adjustment, [DP] needs to continue his current treatment regime of antidepressants and psychological therapy. Because his symptoms and his avoidance adjustment are entrenched he will need long term treatment and possibly indefinite support.

The cost of psychological therapy is between $250 and $350 per session. Medicare will cover a considerable part of this if the treating clinician is a psychiatrist, around $167. The Medicare rebate provided to psychologists is about $100 a session for ten sessions per year; some private health funds will pay an additional portion of the fee.

Medication becomes less helpful in very chronic psychiatric conditions, but [DP] will be vulnerable to more acute exacerbations of his symptoms and at those times antidepressant medication may be needed. Antidepressants are not only helpful with depression, they are also useful in the management of anxiety and PTSD symptoms.[257]

[489]

(i) the type of condition or disorder;

The most likely explanation for the plaintiff's anxiety and fear of crowds is Panic Disorder with Agoraphobia. He has a past history of Polysubstance Abuse. There is significant avoidant personality dysfunction but insufficient material upon which to diagnose a personality disorder.

(ii) the approximate period of onset of the condition or disorder:

It stems from childhood, according to the history obtained.

(iii) the symptoms by which the condition or disorder has manifested;

Over the years the plaintiff has reported panic attacks and considerable anxiety in relation to crowds and people.

(iv) the treatment, past and future, for the condition or disorder;

He has received psychological counselling and a moderate dose of antidepressant medication which he still takes. He requires ongoing treatment with antidepressant medication, psychological assistance and occasional use of short acting sedative medication.

(v) your prognosis; and

He is likely to experience the anxiety condition for the remainder of his life.

...

(c) Your professional opinion as to the extent that [DP] has had and/or still has psychopathology, the extent to which each of the following are likely to have caused or contributed to the psychopathology:

(i) the alleged abuse by Coffey:

Based on the nature of the trauma, it was insufficient to case Posttraumatic Stress Disorder but predisposed the plaintiff to anxiety and I attribute one sixth of his anxiety condition to the alleged trauma.

(ii) any other traumatic incidents or other events/stressors experienced by [DP]:

Based on the early age of onset and the significant relationship of father to son and the threat of death by the father, I attribute a high degree of significance to the trauma perpetrated by the father and consider that it predisposed him to the development of anxiety and I therefore attribute one third of current condition to the abuse by the father. Although the alleged abuse by the teacher ... was upsetting at the time and was likely to have caused transient distress, it was not sufficient to cause PTSD and in my opinion does not contribute in a significant way to his current anxiety disorder. The suicide of his first long-term partner was a severe trauma but the plaintiff reported no significant ongoing distress from that bereavement.

(iii) any constitutional or genetic psychiatric or psychological conditions suffered by [DP], and predisposition to such conditions; and

Anxiety disorders and a Panic Disorder with Agoraphobia are underpinned by genetic/constitutional factors and I attribute 50% of his anxiety condition to constitutional factors.

(iv) any other factors

Although he has a somewhat stressful existence acting as a carer for his ex-partner, nothing revealed in the materials or at the interview suggested that he does not cope well with that role and he is indeed a paid a [sic] carer. I attribute none of his anxiety condition to current stressors.

Plaintiff v Defendant

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