79 CLR 370
DP (a pseudonym) v Bishop Paul Bernard Bird [2021] VSC 850
Fox v Percy (2003) 214 CLR 118
[2003] HCA 22
Gersbach v Gersbach [2018] NSWSC 1685
Graham v Baker [1961] HCA 48
(1961) 106 CLR 340
Jones v Dunkel (1959) 101 CLR 298
[1959] HCA 8
Lamb v Cotogno (1987) 164 CLR 1
Source
Original judgment source is linked above.
Catchwords
79 CLR 370
DP (a pseudonym) v Bishop Paul Bernard Bird [2021] VSC 850
Fox v Percy (2003) 214 CLR 118[2003] HCA 22
Gersbach v Gersbach [2018] NSWSC 1685
Graham v Baker [1961] HCA 48(1961) 106 CLR 340
Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8
Lamb v Cotogno (1987) 164 CLR 1[1987] HCA 47
Lister v Hesley Hall Ltd [2001] UKHL 22[2002] 1 AC 215
Lloyd v Grace, Smith & Co [1912] AC 716
Malec v J C Hutton Pty Limited (1990) 169 CLR 638[1990] HCA 20
March v E & MH Stramare Pty Ltd 171 CLR 506212 CLR 511
Nguyen v John Fairfax (1966) 117 CLR 118
(1966) HCA 40
Prince Alfred College Inc v ADC (2016) 258 CLR 134
The plaintiff seeks damages from the defendant arising out of alleged sexual molestation/assault perpetrated by an employee of the defendant on the plaintiff whilst the plaintiff was in Year 6 at De La Salle College, Revesby Heights ("DLS Revesby Heights").
The plaintiff alleges that during the period 1983 to 1984, he was sexually abused by Errol Swain, who was a school teacher at DLS Revesby Heights and, in fact, was the plaintiff's Year 6 teacher. Mr Swain also lived on the school grounds, having been permitted to live in his own caravan on the school grounds and to act as a form of caretaker on the weekends.
On the plaintiff's case, he did not inform anyone of the sexual abuse until he was 43 years old. He was born in 1972 and is now 50.
On the plaintiff's case, he is a victim of historical sexual abuse, who was only able to finally reveal what happened to him at school after hearing and reading about many other victims coming forward both before, during and after the Royal Commission into Institutional Responses to Child Sexual Abuse [1] ("the Royal Commission").
The plaintiff commenced proceedings by filing a statement of claim on 24 March 2021. The plaintiff pursues a case directly against the defendant on the basis that it was negligent because it knew or ought to have known of the propensity for Mr Swain to molest and abuse school children, and on the basis that it is vicariously liable for Mr Swain's conduct.
By its defence, the defendant originally raised a number of defences including that:
1. It did not admit the abuse.
2. It did not admit that it was the correct defendant.
3. It did not admit that it was the employer of Mr Swain.
4. It relied on a limitation defence.
5. It did not admit that the plaintiff had suffered injury, loss or damage.
In the days before the hearing was due to commence on 24 October 2022, the defendant filed an amended defence, the effect of which was to:
1. Admit breach of duty of care in the sense that it accepted that it ought to have known of the propensity of Mr Swain to abuse children.
2. Not admit that the plaintiff suffered abuse at the hands of Mr Swain (pleading that it was unable to get instructions, as Mr Swain had died many years earlier).
3. Withdraw the limitation defence.
4. Deny that it is vicariously liable for the conduct of Mr Swain.
Although the matter was originally listed for a 10-day hearing, the effect of these admissions was to no longer require the plaintiff to adduce evidence from up to 20 witnesses as to the alleged conduct of Mr Swain at DLS Revesby Heights, involving a number of other students. The defendant did not seek to challenge the content of those statements and they were admitted for all purposes.
However, there was no admission by the defendant that the plaintiff was abused by Mr Swain at any time.
Both parties relied on expert psychiatric and psychological evidence. The experts met in conclave and produced a joint report. There is no real disagreement between the experts on the questions raised. Neither party wished to cross-examine those experts and no oral evidence was adduced from the experts despite the importance of their evidence to the case.
The defendant announced at the commencement of the hearing - that is, during opening submissions - that it would be maintaining that the plaintiff could not rely on or give no weight to the experts' psychiatric reports, as all of the opinions were based on false assumptions. Although the plaintiff was made aware of this, the plaintiff did not seek to clarify any issue arising in the reports through those experts.
As the case developed, the issues for determination became:
1. Did the plaintiff suffer abuse at the hands of Mr Swain? If so, under what circumstances and to what extent?
2. Is the defendant vicariously liable for the conduct of Mr Swain in perpetrating sexual abuse?
3. To what extent and for what period has the plaintiff suffered psychological symptoms consequent of the abuse?
4. On what basis should damages be assessed?
If the answer to question (2) above is no, and I am satisfied that the plaintiff suffered abuse at the hands of Mr Swain, I understand it to be common ground that I would accept that the defendant was negligent (the direct claim) and that damages would be assessed under the Civil Liability Act 2002 (NSW) ("CLA"). No exemplary or aggravated damages could be awarded.
On the other hand, if I accept that the defendant is vicariously liable for the conduct of Mr Swain in sexually and/or physically abusing the plaintiff, then damages would be assessed at common law - that is, without the restrictions under the CLA. Further, it would be permissible to award both exemplary and aggravated damages (should I so find that such damages should be awarded in the circumstances of the case).
Having regard to the concessions (limited or otherwise) made by the defendant, the hearing time was shortened. Indeed, much of the evidence was documentary. Only the plaintiff gave oral evidence (that is, he was cross-examined).
[2]
The plaintiff's case
The plaintiff alleges that he, like a number of other boys at the school, was sexually and physically abused and assaulted by Mr Swain. Such abuse is said to have taken place:
1. in the classroom whilst Mr Swain was acting as the teacher in the presence of other boys;
2. in the playground at other times;
3. on a weekend or weekends when Mr Swain invited or directed the plaintiff to come to the school, even though no-one else was there; and
4. during school holidays when Mr Swain similarly invited or directed the plaintiff to come to the school.
The nature of the abuse escalated over a period of time, from:
1. touching the plaintiff's genitals in various disguised ways whilst Mr Swain was sitting in the classroom. The plaintiff was directed to come towards Mr Swain, who put his hands down the plaintiff's pants and touched his genitals;
2. to penetrating the plaintiff when he attended at school on the weekend or holidays.
The plaintiff says that all of this abuse occurred after the defendant was aware that Mr Swain had the tendency to, and had been molesting, other boys. In particular, the plaintiff says that the principal of the school received specific and direct complaints from two other parents as to Mr Swain's conduct towards their children.
In respect of the first complaint, Brother Michael is said to have suggested that he was aware of it, but it would be better if Mr Swain was kept at the school so that he could keep an eye on him. In respect of the second complaint, he simply rejected the idea that it could have occurred.
It is the plaintiff's case that even though Brother Michael must have known about Mr Swain's conduct, he did nothing about it. Further, it is the plaintiff's case that the relationship between the defendant and Mr Swain was such that, in accordance with that said in Prince Alfred College Inc v ADC, [2] the defendant should be found vicariously liable for the conduct of Mr Swain.
[3]
The plaintiff's evidence
The plaintiff served three evidentiary statements. Those evidentiary statements were admitted as evidence-in-chief. He was cross-examined extensively on behalf of the defendant.
The plaintiff is currently 50 years of age. His parents separated when he was a young boy. He went by the name of his mother's new partner until he was in Year 10, when he reverted to his father's surname.
His mother and her new partner separated when the plaintiff was around 10. Prior to that time, he experienced a happy childhood, having friends and engaging in sport.
In 1982, the plaintiff and his mother moved to Padstow. He commenced at DLS Revesby Heights in the third term of Year 5.
In 1983, the plaintiff's Year 6 teacher was Mr Errol Swain. According to the plaintiff, Mr Swain was a tough teacher who caned the boys, even for minor transgressions. All of the students were afraid of him. Students would be hit with the strap simply for getting a quiz question wrong. The plaintiff estimated that he had been strapped on around 30 occasions in Year 6. It was a very painful experience. Although he pleads the strapping as a form of abuse, that issue was not developed during the course of the hearing, and there is no evidence that Mr Swain's use of the strap caused the development of any injury. It is unnecessary to consider that aspect of the pleadings again.
According to the plaintiff, about three or four weeks into the school year, Mr Swain began calling the plaintiff up to his desk to talk to him. He believed that Mr Swain was generally interested in him. He used to ask questions about his home life. Mr Swain seemed concerned for his welfare. Mr Swain's behaviour was erratic because sometimes he would strap or cane the plaintiff and, at other times, he would demonstrate care for him.
The plaintiff recalls that about six weeks into the term, Mr Swain first touched him on the leg whilst he was standing next to his desk. Over time, the touching became more regular and intimidating, including touching on the inner thigh and the cheeks of the bottom. Mr Swain started to call the plaintiff up to his desk just a minute before recess. He recalls Mr Swain moving his hands up into his shorts. The plaintiff froze and started crying. According to the plaintiff, this abuse escalated and from time to time, Mr Swain would open the plaintiff's fly and put his hand inside his shorts and fondle his penis and testicles. Mr Swain also touched himself at the same time.
[4]
Cross-examination of the plaintiff
The plaintiff was extensively cross-examined on behalf the defendant. The defendant sought to develop a case that:
1. The plaintiff did not really suffer abuse at the hands of Mr Swain or, if he did, I would be unable to make any findings about the nature and extent of that abuse.
2. The plaintiff was seeking to blame everything that had happened to him throughout his life since Year 6 on Mr Swain's conduct when, in reality, much of the plaintiff's life story is a result of his own life choices.
3. The plaintiff had ample opportunity to mention the abuse to different people such as doctors, parole officers and Judges over the years but there is not even a hint of the abuse in any contemporaneous document.
4. Only after the publicity about the Royal Commission and, indeed, publicity about Mr Swain's conduct at DLS Revesby Heights, did the plaintiff come forward. Further, his first contact was with his solicitors and his choice of treating psychologist was the psychologist recommended by his solicitors.
5. He was, as put directly to him, seeking to blame everything on Mr Swain so that he could maximise his damages claim. He was quite deliberately doing that.
6. Most of the things that have happened to him during his life were caused by other unrelated events and unrelated to any abuse perpetrated by Mr Swain (if they occurred).
Indeed, Mr Watson outlined that approach in the initial cross-examination of the plaintiff as follows:
Q. I'm afraid I have to put some general propositions to you, [SR], at the outset. [SR], you've set out to do things in this case. The first is you've set out to blame every misstep in your life, every mistake - to blame every one of them upon abuse you say you suffered at the hands of [Swain]; you've done that, haven't you?
A. Yes.
Q. You've done that quite deliberately, haven't you, for the purposes of this case?
A. No.
Q. The second thing that you've done is you've set out to downplay the role of every other potentially stressful event in your life with a view to placing greater blame upon [Swain], haven't you?
A. No.
Q. What I'm putting to you is a general proposition at the outset, is that you've done those two things, you've done them deliberately with a view to maximising your damages, haven't you?
A. No.
Q. If we just talk in general terms, you're blaming [Swain] for wrecking your life?
A. Yes.
Q. For pushing you toward crime?
A. Yes.
Q. Pushing you toward drugs?
A. Yes.
Q. Prematurely ending your education?
A. Yes.
Q. You're blaming [Swain] for the time that you spent in gaol?
A. Yes.
Q. You're blaming [Swain] for your failure to get a job?
A. Yes.
Q. You've never really had a real job, have you?
A. No.
Q. You're blaming [Swain] for ruining your marriage?
A. Yes.
Q. You're saying that your wife couldn't handle you because of the abuse by [Swain]; that's what you're saying in this case, aren't you?
A. Yes.
Q. [SR], do you accept any responsibility for any of this?
A. Yes, I do.
[5]
The school's knowledge of Mr Swain's conduct
The plaintiff relied on a statutory declaration of MS dated 15 August 2017. In 1967, MS' son was taught by Mr Swain at De La Salle College Bankstown. During that year, her son had revealed that Mr Swain had been interfering with him. She contacted the principal, Brother Julian. Brother Julian said that he would be calling investigators in to investigate the matter. A short time later, Brother Julian called her back saying that there had been an investigation and that her son was not the only one that had been molested. There were several. Brother Julian assured MS that there would be no further incidents and Mr Swain would undergo treatment. He said it would be safer to keep Mr Swain at the school because they knew of the problem and they could watch him. MS said at the time that the brothers were held in high regard, and she accepted what Brother Julian said.
In 1995, MS' son mentioned Mr Swain's past abuse of him. She decided to write a letter to Brother Geoffrey, the head of the De La Salle College Provincial. She was expressing concern about her grandchildren.
In 2011, MS' son committed suicide. MS has become aware that her son had been abused by Mr Swain as early as age 8, when he was in Year 4, and right up to Year 7.
The plaintiff also relied on a statement from Mr T dated 15 October 2022. Mr T sent his son to DLS Revesby Heights, commencing in 1982. He remembers changes in his son's behaviour in 1983. His son revealed to him that his Year 6 teacher had been touching him and interfering with him sexually. His name was Mr Swain. Mr T spoke directly to Brother Michael on the phone. He attended the school and met with Brother Michael. Whilst he had difficulty raising the subject, Mr T told Brother Michael that Mr Swain had been touching up his son. Brother Michael responded immediately saying "No, that is impossible … No, that cannot be correct … I have known this man for so many years and he would never do such a thing …".
According to Mr T, Brother Michael dismissed his complaint. He never spoke to his son directly about it again. He recalls that his son went off the rails. He ran away from home and his life spiralled out of control.
[6]
The medical evidence
The plaintiff was examined by A/Prof Carolyn Quadrio, consultant psychiatrist, on behalf of his solicitors on 24 March 2020. A/Prof Quadrio provided two reports dated 5 June 2020 and 11 August 2022
The plaintiff was examined on behalf of the defendant by Dr Samson Roberts. Dr Roberts provided two reports dated 30 November 2021 and 31 August 2022. The experts met in conclave and produced a joint report dated 23 September 2022.
There is substantial agreement between the experts. Neither party sought to ask the experts any questions. The experts agreed that they obtained similar accounts of symptomology and came to a similar diagnosis. They agreed that the conditions which they had diagnosed arose from the abuse by Mr Swain. Plainly, that opinion was based entirely on what they were told by the plaintiff.
They also referred to familial factors that would have increased the plaintiff's vulnerability to abuse, but he had no pre-existing psychiatric condition (I assume they mean before the age of 11). They also agreed that, if not for the effects of the abuse, the plaintiff would have likely achieved a higher level of formal education and there is an accepted correlation between child abuse, substance abuse and criminal activity.
Further, symptoms such as sleep issues and compromised interpersonal relationships are recognised symptoms. Compromised employability and earning capacity are a manifestation of the diagnosed conditions. Both experts agreed that the symptoms began to manifest at the time of abuse and developed over time into diagnosed conditions. The conditions are considered permanent. They also agreed on the type of treatment the plaintiff should be undergoing.
The history obtained by the experts was similar to the plaintiff's evidence-in-chief in this case. The diagnosis and prognosis are very much a reflection of that history.
The experts diagnosed the plaintiff as suffering from complex post-traumatic stress disorder ("PTSD") and depressive disorder, chronic anxiety and enduring post-traumatic personality change. Complex PTSD is a condition which develops as a result of complex childhood trauma, particularly when it involves childhood sexual abuse. Typical symptoms of complex trauma include mood dysregulation, such as anxiety, depression, edginess, panic attacks, anger, difficulties in relationships such as numbing, withdrawal and hypersexuality and problems with self-organisation, such as shame and self-blame.
[7]
Other medical evidence
The plaintiff first consulted Mr Sorbello on referral from his GP, at the suggestion of his solicitors, on 10 August 2019. He provided a history to Mr Sorbello consistent with his evidence in this case, except that he did not provide the detail of all of the sexual offending referred to by the plaintiff in his evidence. He told Mr Sorbello that the abuse happened up to 20 to 25 times and it gradually escalated. He specifically said initially that the touching did not include oral sex.
In his interim report of 6 March 2020, Mr Sorbello notes that it took the plaintiff several sessions to establish trust with him and to realise the full extent of his sexual abuse. Some more detailed events only emerged after a number of consultations. He noted that the plaintiff had unremedied anger towards Mr Swain and DLS Revesby Heights. He continued to feel guilty and ashamed. He diagnosed PTSD, major depressive disorder, alcohol abuse disorder, cannabis abuse disorder, amphetamine use disorder and tobacco abuse disorder. He felt that the plaintiff had been suffering from PTSD since the age of 11. It had a catastrophic and deleterious effect on his life.
Importantly, the plaintiff also detailed the problems he was experiencing with his wife. His wife had severe mental health problems. He obtained an AVO against her in respect of her abusive texts. His son had not spoken to his mother in four months. His wife had threatened to kill him. Indeed, his problems with his wife appear to have assumed some dominance in latter sessions with Mr Sorbello.
On 2 May 2020, the plaintiff said he was still experiencing suicidal ideation exacerbated by his wife's vindictiveness. He remained distraught, stressed and was drinking heavily.
The notes and records of the Crown West Medical Centre (Dr Hernandez) were in evidence.
During 2011 to 2016, several GPs saw the plaintiff on a number of occasions on which he complained of problems such as smoking problems, chest tightness, and a fractured left wrist. Indeed, he attended the medical centre 10 times during this period without mentioning any psychological distress.
On 8 February 2016, the plaintiff consulted Dr Hernandez complaining of severe depression. He referred to his marital break-up eight months earlier. He said he had suffered from depression for years. He suffered from suicidal ideation. He said he had a difficult childhood and was sexually assaulted by a babysitter as a child.
[8]
School reports
The school reports may have some significance, as they may shed some light on the middle school deterioration spoken of by the plaintiff.
The pre-Year 6 reports suggest that the plaintiff was a good student, although not exceptional. Mr Swain made a comment in his Year 6 report that the plaintiff found it difficult to settle down to schoolwork. He suffered from a lack of concentration in class. His marks would reflect average rather than exceptional results. It may be unsurprising that the plaintiff found it difficult to settle down in Mr Swain's class.
He was criticised in Year 7 for making no effort in his religious studies. Again, his marks might be viewed as average and not inconsistent with earlier reports.
His school report in Year 9 is quite different. It is signed by Mr Crowe, with whom the plaintiff identified as having a good relationship. Mr Crowe said that the plaintiff was one of the luckiest boys in Year 9. He seemed to have a perpetual smile on his face and enjoyed school. His performance could be improved with extra effort. He was described as having a sunny attitude. He was described as having done very well in Year 9.
He similarly achieved good results in Year 10. He was awarded the School Certificate. In Year 11, there was criticism that the plaintiff was not working hard and lacked motivation. He had the potential to do better and needed to apply himself, but the other comments are quite encouraging He completed Year 11. There is formal record of his completion with good results. His evidence that he failed Year 11 is not correct.
The school reports do not reflect any real diminution in performance or any significant behavioural problems. At best, they suggest that the plaintiff had difficulty concentrating, was not as motivated as he should be and should have been trying harder. His Year 9 reports were entirely positive. It was also suggested that he had a much greater potential than his results indicated. These sorts of comments are hardly out of the ordinary for many students. The school reports do not provide objective support for the plaintiff's narrative. Indeed, they are inconsistent with the narrative, particularly his statement that he failed Year 11.
[9]
Other evidence
A transcribed interview with Brother Michael Johnson, taken on 14 April 2016, was admitted into evidence. He recalled that Mr Swain had a caravan, and he was lonely and he used to live in Katoomba. When he was employed at DLS Revesby Heights, Brother Michael gave Mr Swain permission to park his caravan around the back of the school grounds. His presence on the school grounds also meant that they had some sort of security on the premises, and it would reduce the break-ins. Brother Michael did not think the caravan remained there for too long (that is, not a number of years).
[10]
Findings
The critical issue is whether I should accept the plaintiff's evidence, including the history provided by him, the statements as to the events which happened and the statements as to his level of symptomology and psychological condition.
The defendant says that I should not, albeit it makes that submission in the context that it does not submit that the plaintiff suffered no abuse at the hands of Mr Swain. As I have already indicated, that was put to the plaintiff but the defendant specifically says that it is not pursuing a defence on the basis that the plaintiff was not abused by Mr Swain.
However, the defendant maintains that, as I would have a real doubt about the credibility of the plaintiff, I would be unable to accept what he said happened. The defendant emphasises in its final submissions that I should have regard to the fact that Mr Swain is dead, and that the plaintiff knew that when he decided to come forward with his allegations. The defendant suggests that the plaintiff's insistence on blaming everything that has happened to him on the abuse by Mr Swain is absurd and impacts on any assessment of him. The defendant highlights the occasions when there was an opportunity for the plaintiff to reveal, at least, his psychological symptoms, when he did not, as casting a doubt on whether they existed.
Of course, as the defendant points out, and as was the subject of lengthy cross-examination, there is no contemporaneous school record or other post-school record or even medical record which would tend to corroborate the plaintiff's version of events.
Further, as I have outlined, there have been opportunities in the plaintiff's life when it might have been expected that the plaintiff would have revealed the sexual abuse, because it may have been in his benefit to do so (such as on sentencing).
Having said that, there are a number of aspects of the evidence which cause me to accept that the plaintiff suffered the abuse, at least of the type described by him.
Those factors include:
1. The plaintiff's version of events is consistent with the evidence of a number of other persons who shared similar experiences whilst in primary school at DLS Revesby Heights. The evidence of 22 persons was admitted without objection. It was admitted as tendency evidence. There is nothing novel about the plaintiff's complaints or history. It is consistent with the evidence of the other young boys who were similarly abused by Mr Swain. Although the cross-examination was conducted on the basis that I would not believe the plaintiff, the defendant accepts that the plaintiff suffered some abuse at the hands of Mr Swain, and thus it could not be its case that the plaintiff has simply made it all up.
2. Although the defendant pointed to an absence of any contemporaneous or post-event record at all until 2016, which might tend to corroborate the plaintiff's evidence, the pattern of non-disclosure and keeping things secret is hardly new. It is a well-known and well-exposed pattern of behaviour which so many young men have endured, having regard to their feelings of guilt, shame and their fear of not being believed. That pattern of behaviour may continue, even when relationships develop.
3. Whilst it is always possible to point to other factors which might have led to the plaintiff's drugtaking and life being derailed through criminal activity, again, such a pattern of behaviour is now known to be consistent with the trauma, shame and guilt experienced by young boys following abuse.
4. The fact that the plaintiff came forward only after the emergence of the Royal Commission and only after becoming aware of all the other boys who were abused by Mr Swain, is not evidence that he was "jumping on the bandwagon" or, in some way, simply out for the money. The fact that Mr Swain was dead when the plaintiff came forward does not lead to any adverse inference against the plaintiff. The plaintiff's so-called tendency to blame everything on Mr Swain may be absurd when looking back and considering things dispassionately and objectively but victims of sexual abuse may not view their abuser with such detachment.
5. Of course, in our system, plaintiffs are seeking money, but the fact that they may be motivated by compensation is not a disentitling factor or a factor which should be in some way held against them. Similarly, solicitors represent people. The fact that a claimant might take the advice of a solicitor and seek treatment which might benefit the claimant personally and assist his compensation claim is, again, not a disentitling factor, albeit it must be viewed as part of a particular sequence of events and in company with other evidence.
6. A psychologist who treated the plaintiff has accepted his symptomatology and condition, made a diagnosis and attributed it to the abuse. Again, that must be based on acceptance of his history and symptoms, but the psychologist obviously did not consider that the history provided to him was implausible or likely to be made up.
7. Similarly, both medico-legal experts who assessed the plaintiff agree that the plaintiff suffers from PTSD and related depressive symptoms, consequent upon the abuse. They have met in conclave and produced a joint report. The defendant did not challenge those experts, except, of course, if I do not accept the plaintiff's narrative then I may not accept the opinions of those experts, at least to the extent that a differing narrative impacts on those opinions.
8. Further, although the defendant opened the case on the basis that I would not accept the expert medical evidence as I would not accept the history given, no submission was made to the effect that if I accept the history given, I would not accept the diagnosis and prognosis.
[11]
Vicarious liability
However, the plaintiff seeks damages at common law.
As is well-known (and as I explained in PP v DD (No 2)), [3] damages assessments under the common law may be higher than assessments governed by the CLA as, for example, the 3% tables apply on assessing future loss and the restrictions on interest do not apply.
Of course, unlike in PP v DD, the person being sued is not the actual perpetrator. The defendant is an institution which, at least for the purpose of this case, accepts that it employed Mr Swain. It did not engage in an intentional tort. The only basis on which it could be liable to pay damages at common law is if it is vicariously liable for the conduct of Mr Swain.
The plaintiff accepts that if the defendant is not vicariously liable for the conduct of Mr Swain, then damages will be limited to damages under the CLA and the plaintiff will not be entitled to aggravated or exemplary damages.
Vicarious liability is a mechanism whereby legal responsibility is attributed to a person arising out of the conduct of another person, even though the person who is held to be legally responsible is not at fault. There are a number of types of relationships where the Court has recognised the application of vicarious liability, including, of course, the employment relationship.
In this matter, and only for the purposes of this case, the defendant accepts that at all relevant times it was the employer of Mr Swain. As such, it would be vicariously liable for any wrongful act committed by Mr Swain in the course of his employment. At least in conventional terms, a person being paid to work at a work site as part of his employment and during the course of his employment would be acting within the scope of his employment, unless he is off on a frolic of his own.
As Gleeson CJ stated in New South Wales v Lepore, [4] "The antithesis of conduct in the course of employment is sometimes expressed by saying that the employee was "on a frolic of his own"".
In Starks v RSM Security Pty Ltd & Ors, [5] Beazley JA (Shellar JA and Grove J agreeing) stated:
"…Whether or not an employer is liable depends upon the scope of the employment. Thus, an employer will not be vicariously liable for a wrongful act of the employee if it is committed by the employee 'on a frolic of his own': see Morris v. C.W. Martin & Sons Limited [1966] 1 QB 716 at 733; State of New South Wales v. Lepore [2003] 212 CLR 511 at [41]. Such an act is not within the 'scope of the employment': As Gleeson CJ said in Lepore at [40]:
'Not everything that an employee does at work, or during working hours, is sufficiently connected with the duties and responsibilities of the employee to be regarded as within the scope of the employment. And the fact that wrongdoing occurs away from the workplace, or outside normal working hours is not conclusive against liability.'
13 It is well settled that an employer is liable for a wrongful act of the employee if the employer has authorised it. An employer may also be liable for unauthorised acts. That is also well settled. The difficulty that arises in the latter case is determining the circumstances in which an employer will be so liable. This was the question under consideration in Lepore. There Gleeson CJ restated, at [42], Salmond's formulation of the principle in Salmond, Law of Torts, namely that:
'...an employer is liable even for unauthorised acts if they are so connected with authorised acts as they may be regarded as modes - although improper modes - of doing them but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.'"
[12]
Damages
The plaintiff pursues a substantial claim for damages, perhaps approaching $6 million. He does so on the basis that he is entitled to substantial sums for general damages and that there should be significant awards in respect of exemplary and aggravated damages. He claims past economic loss, essentially on the basis that he is entitled to allowances for the whole period since he has left school. He claims future economic loss on the basis that he will not work again. He says that the causal connection between the symptoms with which he has suffered since he was a teenager and the present time is established, having regard to his evidence and the evidence and the evidence of the medico legal experts.
On his case, his almost complete absence of any substantial periods of work has been caused by Mr Swain's conduct.
The defendant submits that the plaintiff should receive very little by way of damages. Indeed, the defendant's assessment as presented during closing submissions is to the effect that the plaintiff should receive nothing for past or future economic loss and, even on the basis that he was abused, any damages award should not exceed $150,000 (at common law).
The differing damages assessments reflect the parties' differing attitudes and responses to the evidence presented.
Assessing damages for historical sexual abuse presents as a difficult task because much of the evidence which might ordinarily be presented in a claim for personal injuries in respect of loss and damage subsequent to the tortious conduct of the defendant is no longer available. That is, in some respects, a reflection of the fact that the ordinary limitation periods which generally apply to personal injuries claims do not necessarily apply in these types of matters. By virtue of the Limitation Amendment (Child Abuse) Act 2016 (NSW) that commenced on 17 March 2016 and operates retrospectively, there is no limitation period applicable to proceedings where the action for damages relates to "personal injury to a person resulting from an act or omission that constitutes child abuse of the person" (s 6A(1) of the Limitation Act 1969 (NSW)).
It is thus important to observe that the assessment of loss in these types of claims is very much a matter of impression, based on the available evidence, and having regard to what must be the ordinary incidents of life, some good and some bad, which might befall a person over a 30-year period. Assessment of damages is not merely a mathematical exercise. Whilst it may be convenient for the plaintiff to present his assessment of damages by way of mathematical formula (assuming, as he does for the purposes of the case, that he is entitled to be compensated for loss for every year of his life since the abuse), the Court must approach the task more cautiously. Regard must be had to the power of each party to adduce evidence which establishes, corroborates or refutes the plaintiff's narrative.
[13]
General and aggravated damages
General damages are awarded for pain and suffering and loss of amenity of life. Clearly, the plaintiff has suffered since the abuse, although not at his current level. I refer to my earlier observations in this regard.
I adopt what Chen J said recently in respect of aggravated damages in AA v PD [2022] NSWSC 1039 at [126]-[127] as follows:
126. Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). They are awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1987] HCA 47. That is, they are awarded when the harm done by the wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40; State of New South Wales v Abed [2014] NSWCA 419 at [231] (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing). The entitlement to aggravated damages therefore turns upon establishment of these elements.
127. In order to secure an award of aggravated damages, typically (but not invariably) there must be "conscious wrongdoing in contumelious disregard of another's rights": Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70 at [14] (Gleeson CJ, McHugh, Gummow and Hayne JJ). In State of NSW v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [138] (Hodgson JA, Sheller JA and Nicholas J agreeing) ('Riley'), explained that whilst the presence of malice was not essential to ground an award of aggravated damages, and gave some guidance on the character of the defendant's wrongful conduct necessary to support such an award:
"Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong-doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court's disapproval ..."
The plaintiff submits that I should make one award of general and aggravated damages. This is to avoid double-counting, as aggravated damages are awarded for hurt feelings caused by insult, humiliation and the like. [27] They may be awarded when the harm done by the wrongful act was aggravated by the manner in which the act was done. [28]
[14]
Past loss of income
It is surprising the plaintiff has worked so little. It is difficult to attribute his absence from work for such a lengthy period to the abuse. Further, there is some evidence that he has worked for greater periods than he maintains. There is reference to him working as a chauffeur for some period. He worked for his stepfather when he came out of prison.
I accept that the plaintiff cannot recover damages in this matter for any losses said to be consequent upon his criminal conduct. On one view, that should have been limited to 12 months, because there was only a 12-month period when he was actually in gaol. However, there was a period of 5 years when he was engaged in criminal conduct. The evidence is scant as to precisely what he was doing and when he was doing it, and it is not possible to in some way break up that 5-year period into different compensable or non-compensable periods.
The reality is that, during that five-year period, the plaintiff was not attempting to work or look for work. By his own admission, he was engaged in criminal activity, albeit he was not in gaol for that period.
There was also another lengthy period when he made the decision not to look for work and to stay home and look after the children. That may have, in part, been a function of his general lack of work skills, but I am not satisfied on the evidence that he was completely unfit for work during that period. Again, the periods when he was at home and not seeking to work are rather vague. Further, he was plainly able to care for his children. His son, who is now an adult, did not give evidence.
The plaintiff claims economic loss based on the assertion that, if not for the abuse, he would have completed the high school certificate and had a successful career as a businessman.
The plaintiff relies on a vocational capacity assessment report prepared by Michelle Alber of The Vocational Capacity Centre dated 15 August 2022. Ms Alber reviewed various job options and opined that, without a university education, the plaintiff might have become a home improvement installer, earning approximately $100,000 to $180,000 gross per year. With a university education he might have become an economist, earning $206,000 gross per year. Alternatively, with or without a university education, he might have become a managing director of a company, earning $282,000 gross per year.
[15]
Future loss of earning capacity
The plaintiff is currently 50 years old. Assuming a normal retirement age of 67, he thus has 17 further years in which he could earn an income. I accept that he is currently unfit for any work that he might be able to obtain. He has limited work skills. He suffers from severe depression and PTSD. I accept the unchallenged evidence of the expert psychiatrists that he is likely to suffer from these conditions on a long-term basis. It is highly unlikely that he will obtain any employment in the future, having regard to the absence of any real work history and his psychiatric state.
The plaintiff's current psychiatric state is compromised by any ongoing dispute with his former wife. The plaintiff has other health problems, such as emphysema.
Again, the only basis on which I could assess future loss of earning capacity is on the basis of average weekly earnings.
However, I do not accept that the plaintiff should simply receive his full loss of earnings based on average weekly earnings for the next 17 years. This is because, at least at this stage, the plaintiff has had minimal treatment and the state of his depression and anxiety has been very much affected by difficulties with his wife. It may be that both the treatment which he says he will be having and the passing of time (with respect to his marital difficulties) may lessen his symptoms. I would allow a discount of 40% on account of these factors in terms of his claim. I thus assess his claim for future loss of earning capacity on the basis of his average weekly earnings ($1090.50 net) until age 67 (applying the 3% tables and with a 40% discount) as $456,243.40.
[16]
Loss of superannuation
The plaintiff is entitled to loss of superannuation benefits, both in respect of the past and the future at 11%. This amounts to $70,510.50.
[17]
Interest on past general damages
I award interest on past general damages at 2%. [32] I assess past general damages at $150,000, meaning the plaintiff is entitled to interest at 2% on that sum for the whole period because the award of general damages takes account of the whole period from which the plaintiff has suffered some symptoms, albeit I have accepted that his level of symptomology appears to have increased in recent years. This amounts to $114,000.
[18]
Medical expenses
The plaintiff has had limited treatment.
No claim is made for the past because it has been subsidised by Medicare, and he has not retained evidence of any expenses. As for the future, the estimate of the treatment includes the suggestion that the plaintiff undergo impatient detoxification at a private hospital at the cost of $25,000.
The defendant submits that it cannot be reliably assumed that the plaintiff would undergo all of the treatment recommended by the experts and the psychological treatment may be subsidised by Medicare. The plaintiff claims the sum of $60,000. In my view, a figure of $20,000 is appropriate.
[19]
Exemplary damages
It is important to observe that an award of exemplary damages in this matter is not based on, for example, the defendant's failure to do something about Mr Swain when it had knowledge of his activities. If damages were assessed under the CLA and in respect of the defendant's direct negligence, then there could be no allowance for exemplary damages, as they are precluded under the CLA.
If Mr Swain were still alive, it would be appropriate to award exemplary damages against him. However, Mr Swain is now dead. Exemplary damages are punitive rather than compensatory. They are awarded to punish the defendant and provide retribution and to act as a deterrent to the defendant and others. [33]
As the plaintiff is not entitled to the exemplary damages under the CLA, then the only basis in which the defendant could be liable to pay exemplary damages would be on the basis that it is vicariously liable for the conduct or Mr Swain. I am not awarding damages as against Mr Swain. I have already found that damages are payable at common law because the defendant is vicariously liable for the conduct of Mr Swain, but by awarding exemplary damages as against the defendant, I am not punishing or deterring Mr Swain. The defendant is paying damages at common law to the plaintiff because of the conduct of Mr Swain.
This is not an appropriate case for exemplary damages to be awarded as against the defendant.
The plaintiff is entitled to damages as follows:
General and Aggravated Damages $300,000
Interest on past general damages $114,000
Past loss of income $334,761.20
Interest on past loss of income $34,789.50
Future loss of earning capacity $456,243.40
Loss of superannuation $70,510.50
Future medical treatment $20,000
TOTAL $1,330,304.60
[20]
Orders:
Judgment for the plaintiff in the sum of $1,330,304.60. [34]
The defendant is to pay the plaintiff's costs.
I grant liberty to the parties to apply on 3 days' notice should they seek a variation on costs.
[21]
Endnotes
(Final Report, 15 December 2017).
(2016) 258 CLR 134; [2016] HCA 37 ("Prince Alfred College").
[2021] NSWSC 1312 ("PP v DD").
[2003] HCA 4; 212 CLR 511 at [41].
[2004] NSWCA 351 at [12]-[13].
At [44].
[1912] AC 716.
[1966] 1 QB 716.
[1949] HCA 60; 79 CLR 370.
At [58], [62].
[1999] 2 SCR 534.
[2001] UKHL 22; [2002] 1 AC 215 ("Lister").
Lister at [20].
Prince Alfred College at [80].
Prince Alfred College at [80].
Prince Alfred College at [80]-[81].
Prince Alfred College at [130]-[131].
[2021] VSC 850.
[2020] VSCA 328; [2020] 62 VR 234.
[2020] NSWSC 1379.
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
Section 5E, CLA.
(2001) 205 CLR 434; [2001] HCA 18.
171 CLR 506; [1991] HCA 12 at 515.
(2003) 214 CLR 118; [2003] HCA 22.
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] (per Gleeson CJ, Gummow and Kirby JJ).
Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 at [8] per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ.
AA v PD [2022] NSWSC 1039 at [126]-[127] per Chen J; Nguyen v John Fairfax (1966) 117 CLR 118; (1966) HCA 40.
Watts v Rake (1960) 108 CLR 158; [1960] HCA 58.
[2021] NSWCA 310.
At [217]-[218].
See Gersbach v Gersbach [2018] NSWSC 1685 at [511] per Garling J; MC v Morris [2019] NSWSC 1326 at [34] per Fagan J.
Lamb v Cotogno (1987) 164 CLR 1 at [9]-[10]; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 per Windeyer J.
Amended pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) - see SR v Trustees of the De La Salle Brothers (No 2) [2023] NSWSC 150.
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Decision last updated: 09 March 2023
This type of contact happened around three times a fortnight. Then Mr Swain started keeping the plaintiff back after the other students had left. He would open the plaintiff's fly, take out his penis and stroke it. According to the plaintiff, he made him kiss his penis and put it in his mouth. The plaintiff did not know what was happening. He was only 11. He started wearing two or three pairs of underpants so he could not feel Mr Swain's hands. He started missing school, complaining that he was sick. From time to time, Mr Swain went through the motions of tucking the plaintiff's shirt in whilst at the same time fondling, stroking and holding his penis. He put his hands inside his shorts and tried to penetrate his anus.
According to the plaintiff, this went on for the whole of Year 6. The conduct varied between Mr Swain using the cane and strapping him, to fondling him whilst he stood next to him at the desk.
On some occasions, Mr Swain would ask him to help clean the classroom. This occurred particularly at the end of the week or the end of the term. The plaintiff says that during these times, Mr Swain forced him to have oral sex with him. Mr Swain started caressing his penis and touching him at the same time. The intensity of the abuse increased. Then Mr Swain started asking the plaintiff to take things to his caravan, which was on the school grounds. The first time the plaintiff entered the caravan, Mr Swain unbuttoned his pants and started touching the plaintiff's penis. Mr Swain took off his own pants.
On the next occasion, Mr Swain penetrated the plaintiff's anus with his fingers only. He ejaculated on the plaintiff's leg. On occasions towards the end of the school year and whilst they were in the caravan, Mr Swain unbuttoned the plaintiff's shorts and started to fondle his penis and penetrated him with his penis. The plaintiff remembered starting to bleed. He felt violated. He said it was the worst experience in his life. He said he had to pack toilet paper in his underwear for a while to absorb the bleeding.
The plaintiff said he was in a lot of pain and could not sit for many days afterwards.
The plaintiff describes a pattern of abuse occurring initially in the classroom whilst the other boys were present, escalating to forcing oral sex and being requested to meet Mr Swain in his caravan leading to anal intercourse.
The plaintiff graduated from Year 6 and went to a different section of the school in 1984. He recalls that even when he was in Year 7, Mr Swain would see him and call him over and try and tuck in his shirt or put his hands down his pants. However, the plaintiff did not visit Mr Swain's caravan after Year 6, and he was not in a class with Mr Swain after Year 6.
Indeed, he does not remember seeing Mr Swain at the school at all after Year 8. According to the plaintiff, he went from being at the top of the class in Year 6 to the bottom of the class in Year 7. He remembers meeting a very good teacher, Mr Crowe, in Year 8 (Mr Crowe was, in fact, his Year 9 teacher). The plaintiff saw Mr Crowe as a mentor. Unfortunately, Mr Crowe died of a brain tumour.
By Year 9 and 10, the plaintiff was doing better. In Year 11, he switched schools. However, he says he went off the rails in Year 11. He was smoking a lot of marijuana. He said that he used the marijuana to help him stay numb to the constant thoughts about the abuse, as well as his anger and depression. He felt he needed it. He says that he failed his Year 11 exams.
After attending at the commencement of Year 12, he was expelled from school. He says that the principal said that "his type was not wanted here". He then embarked upon a period of doing drugs, drinking and stealing cars. His mother asked him to go and live with an aunt. He said he committed various offences such as jumping bank counters, grabbing money, stealing cars, robbing real estate agents. He was using drugs heavily, including heroine and amphetamines, marijuana and alcohol. He became very promiscuous.
In 1991, the plaintiff went with a friend to get alcohol from a bottle shop. As he sat in the car, the friend held up the bottle shop attendant and shot and killed someone. The plaintiff was arrested. He was convicted of being an accessory after the fact and was sentenced to two years imprisonment with a non-parole period of 12 months. He continued to use drugs whilst in jail.
After he got out of prison, he continued with some criminal activity, but his life stabilised when he entered into a relationship and had children. He had two children, his son born in 2003 and his daughter born in 2006. He married his partner on 12 September 2005 and they stayed together until 2015.
The plaintiff said that by 2015, his mental state had deteriorated. He was significantly affected by the media reports on the Royal Commission. By this stage, his son was going into Year 6 and that triggered memories of everything that had happened to him.
The plaintiff and his wife separated. He only told his wife about what happened to him after they separated. He attributes his marriage break up to his mental health battles.
Both his children have done well at school. His son obtained entry into the Australian National University and is studying politics, philosophy and economics. His daughter was doing well in Year 9.
He says that the process and reporting of the Royal Commission brought everything back to him. It became forefront of his mind. At one stage, his aunt showed him a letter that had been handed around in the Revesby area about all of the abuses that had occurred at DLS Revesby Heights.
The plaintiff says that he has had little by way of employment since he left school. His early years were wasted on drugs and crime. He recalls working at Kmart for a period and having another job at some stage, as well as doing some casual cash in hand work. He stayed at home to look after the children whilst they were younger, although he says that that decision was reflective of his limited ability to work.
On his evidence, he has always suffered from feelings of anger, anxiety and depression relating to the abuse that he has suffered, but his depressive state has become more manifest as time has gone on, particularly when all was disclosed and the coverage of the Royal Commission brought everything back to him. He says that there are some weeks he is so depressed that he cannot get out of bed. He says he would like to do some work, but it is unlikely that any employer would give him a job. He says that he feels he would be too unreliable.
He still drinks heavily. He says that for much of his life he has considered suicide but seeing a psychologist has helped to reduce his suicidal feelings. His only treatment has consisted of 15 sessions with a psychologist, Mr Sorbello. In 2018 or thereabouts, he was prescribed and started taking anti-depressants and anti-anxiety medication. He still takes the medication but drinks a bottle of wine each night. He currently smokes marijuana. He has recently been diagnosed with emphysema. He says that he is unable to cope with everyday life, employment and everyday duties.
He says that the abuse perpetrated by Mr Swain has affected him from the moment it occurred. He lost the innocence of youth. He says his brain was totally reset. He became a totally different person. Confusing and conflicting emotions affected him. He was ashamed. He says there is never a day when he does not suffer flashbacks about Mr Swain's abuse. He was always anxious in the classroom. He could always see Mr Swain's caravan. He had nightmares about Mr Swain throughout high school. He said he was anxious all the time and developed a dark personality. He was carrying around a giant secret. The only person who gave him relief was his Year 9 teacher, Mr Crowe.
He feels there has been no time in his life when he has not been depressed and suffering from anxiety due to what Mr Swain did to him. It is always in his mind. He feels that being drunk or stoned has given him some relief.
Whilst he was in prison in 1996, the plaintiff did not have access to the same level of drugs and alcohol. His time was spent thinking about what had happened to him. He says that he is depressed about the way his life has turned out. He considered himself to be an intelligent student. He comes from a family of hard workers. Both his children are very intelligent and hardworking. He believes that he was a disappointment to his family. He thinks that if not for Mr Swain's conduct towards him, he would have spent his life in employment. He blames his marriage breakup on his drinking and doing drugs. He has always been worried about his children being in the Catholic system.
The plaintiff acknowledged that he stayed home to look after the children but says that, at that time, he had no work experience and no work skills. He had a drug addiction and no CV.
Both of his parents worked, and he would have worked if he was able to.
The plaintiff remains very pessimistic about the future. His son has already left home and his daughter is now in Year 11. He sees no role for himself. His sleep is awful. He wakes up several times a night. He gets heart palpitations and feels sweaty. He continues to have nightmares about Mr Swain. He is unable to concentrate on any tasks. He has no circle of friends; he has only one friend. He has become completely unreliable and disorganised.
It was put to the plaintiff that his academic results did not really deteriorate in middle school and that he was expelled for selling drugs. That was his own choice. It was put to him that he then embarked upon a "life of crime". There was extensive cross-examination of the plaintiff's criminal offending albeit, in my view, the suggestion that the plaintiff had embarked on a life of crime was somewhat of an overstatement.
Whilst the plaintiff had been charged with a number of offences and has previously spent 12 months in prison, his criminal activity spanned a period of approximately 5 to 6 years in his twenties. On the plaintiff's case, he went down the well-worn path of engaging in property-related offending for the purposes of obtaining money to feed his drug habit.
There was extensive cross-examination on the orders and comments made by Sully J during the course of those proceedings (and by Campbell J in earlier proceedings.). The plaintiff was challenged on why he could not remember what had been said during those hearings. It was put to him that, despite being ordered to seek treatment, he did not do so. Again, it was suggested that this was some form of choice on his part. It was put to him that he had ample opportunity as part of that process to reveal what had happened to him as a reason for his behaviour. He agreed that he did not.
There is no doubt that the plaintiff did embark upon a period of criminal activity, albeit he avoided jail for most of the offending. It seems that his criminal activities had ended by the late 1990s and were related to a very severe drug habit. On the plaintiff's case, this was all part of the downward spiral on which he had embarked as a result of Mr Swain's conduct. On the defendant's case, I would not accept what the plaintiff said happened to him, and his life story was one of a young man turning to drugs and criminal activity for other reasons.
Through his cross-examination and source documents, Mr Watson established that, despite a number of opportunities to reveal Mr Swain's abuse prior to 2016, the plaintiff did not do so.
Further, there were other matters which could have impacted on the plaintiff.
The plaintiff was involved in a serious bike accident and suffered orthopaedic injuries, which appears to have put an end to his potential career in the air force (albeit, he said that is what his parents had wanted him to do). He did not reveal any psychological problems at that time.
The plaintiff suffers from emphysema and, over the years, has sought medical help in respect of his problems associated with smoking. He did not reveal any other health problems at the time; for example, in 2010 he suggested that his health was good.
The plaintiff saw doctors on a number of occasions over the years prior to 2016 and never mentioned the psychological symptoms which he now maintains he had been suffering from throughout all of his adult life. The notes of his GP in 2016 refer to the plaintiff suffering from depression for a number of years, but the cause of that depression is said to be multi-factorial, without mention of the abuse the subject of these proceedings.
The effect of the cross-examination was really to demonstrate that the plaintiff did not give a hint to any person he saw for medical treatment of any problems he might have had in his life (as relevant to what happened to him in Year 6). Mr Watson successfully demonstrated that, prior to 2016, there was really no contemporaneous document, medical or other evidence, which might have suggested that the plaintiff was a victim of sexual abuse as a young boy.
However, Mr Watson went further. He specifically put to the plaintiff that he did not suffer any abuse at all. This was surprising, as that was not pleaded. Indeed, the defendant pleaded only that it could not obtain instructions from Mr Swain as he is deceased, and thus "did not know" in respect of the allegations of abuse. The basis on which that morphed into a positive proposition that the plaintiff suffered no abuse is unclear.
When I questioned Mr Watson as to whether it was really his case that the plaintiff suffered no abuse at the hands of Mr Swain (meaning this case is a complete fabrication), Mr Watson said that that was the primary position and, on the alternative, I would not accept the level of extent of the abuse.
However, after a short adjournment, Mr Watson said that he had been instructed by the pastoral director of De La Salle Brothers (who was in Court at the time) not to pursue the submission that the plaintiff suffered no abuse at the hands of Mr Swain. As I understood it, the defendant's position is that I would not accept the plaintiff's evidence as being accurate and reliable, but I would accept that he did suffer some abuse at the hands of Mr Swain.
Having said that, the defendant's position on the causal relationship between any alleged symptoms and Mr Swain's conduct was plainly that there was no causal relationship. This is plain from the defendant's assessment of damages (a total of $90,000). Indeed, it was quite squarely put to the plaintiff that he was pursuing this claim only after he heard about people getting money. It was only after he saw his solicitor that he sought treatment and revealed the abuse to anyone. The following exchange occurred:
Q. So you knew that from the time you did this search that Koffels were lawyers acting for people making allegations against [Swain], and on the back of that seeking money?
A. Yes.
Q. And you got in touch with Koffels?
A. Correct.
Q. Your search has also told you something else about it, that [Swain] was dead?
A. Yes.
Q. And you knew [Swain] was dead?
A. Yes.
Q. You knew [Swain] wasn't around, so that if he denied abusing you, his voice could not be heard; you knew that, didn't you?
A. I assumed that, yes.
Q. You knew you couldn't be contradicted, didn't you?
A. Yes.
Q. You knew that you could say what you want and there was no possibility that [Swain] could contradict you?
A. Yes.
Q. You knew that you were free, it was open to you to say what you wanted about [Swain] and you'd never be contradicted?
A. I just told the truth about [Swain].
Q. And you went to see the solicitors?
A. Yes.
It was put to the plaintiff, in effect, that:
1. It was his decision to take up and sell drugs in high school and he thus suffered the consequences.
2. He chose to pursue "a life of crime," including various property-related offences and the serious offence of accessory after the fact to murder.
3. Despite his extensive drug habit, he was able to get off or reduce his level of drug-taking when he entered into a relationship.
4. When he and his partner had children, he chose not to work, instead staying at home looking after the children whilst his wife earned the income. That was his decision not affected by any psychological state.
5. His marriage beak up was caused by a number of factors and, in particular, was caused by the mental health of his wife. Indeed, he was taken to medical evidence which suggested the plaintiff himself attributed his marriage breakup to a number of factors, only one of which was the sexual abuse perpetrated on him as a child.
6. He has chosen not to work. Indeed, he provided false information to Centrelink at one period for the purposes of obtaining government benefits. He said he had been working and he now says that, in fact, he had not been.
7. He had ample opportunity to reveal the nature and extent of the abuse, particularly when it would have benefited him to do so during sentencing or parole considerations in the mid-1990s. He did not do so.
8. He had ample opportunity to disclose the nature and extent of abuse when asked questions by his general practitioner about his health. He did not do so.
9. It was not until after he had seen his solicitors that he went back to Dr Hernandez and told him of the abuse seeking a reference to Mr Sorbello, the psychologist recommended by his solicitors.
In the end, the plaintiff tended to agree with the cross-examiner that much of his life decisions and things that happened to him in his life were his choice, in the sense that he did them voluntarily. However, he maintained that, for example, during his period of criminal offending he was engaged in acts of self-sabotage. He said that he would rather have spent time in prison than reveal what happened to him publicly (in response to the suggestion that he could have informed the Court in the mid-1990s as to the reason for his behaviour and chose not to).
The plaintiff agreed that he made limited attempts to work but put that down to his mental state, state of disorganisation and lack of motivation and general anxiety and depressive state.
Having said that, other than in respect of an occasion when he lied to Centrelink for the purpose of obtaining a government benefit, it was not suggested to the plaintiff that he was lying about his lack of work since leaving school. The plaintiff considered that he might have done some limited work such as casual jobs, but it was not put to the plaintiff that he was concealing some work history.
Further, in my view, there was a degree of overstatement in the propositions put to the plaintiff, such as the suggestion that he embarked upon "a life of crime". He did not. Indeed, any criminal conduct appears to have ended before 2000. At all other times, he remained at liberty and available to work, subject to any other reasons why he would not be working.
Further, as I have already observed, the direct suggestion that the plaintiff did not suffer from any abuse at the hands of Mr Swain was withdrawn after the end of cross-examination, when I asked the defendant about that proposition. Putting to a victim of child sexual abuse that he or she in fact suffered no abuse is a serious matter. It goes to the very heart of what victims of historical sexual abuse fear: not being believed.
During re-examination, the plaintiff was asked how he felt about it being suggested to him that he was not abused at all. The plaintiff said he was angry.
It is important not to place too much emphasis on demeanour, but I did not gain the impression that the plaintiff was being evasive. He answered the questions in a straight-forward matter. He plainly understood them. He accepted propositions which were reasonably put and rejected propositions which were contrary to his evidence in a straight-forward way, albeit he appeared to be completely worn out and exhausted. He had the look of a person who did not sleep.
Further, the defendant's attack on the credibility of the plaintiff was really based on the assertions by the defendant of the improbability of some of the things he asserted, not just limited to the abuse, but to his life story.
Some points were well made by the defendant, but as I have indicated, I have a concern that there were propositions put to the plaintiff, such as that he suffered no abuse and that he had lived a "life of crime," which were overstatements.
Having said that, there was some inconsistency in the plaintiff's evidence relating to the description of how he came to disclose the conduct of Mr Swain. Although he said in his evidentiary statement that there had not been a day since it happened where he had not remembered the abuse and not suffered from its consequences, he also said that the Royal Commission had caused it "all to come flooding back" and that, in some way, his memory of events had been suppressed until the Royal Commission and reading about things and indeed hearing about some reports in respect of DLS Revesby Heights. Further, a close examination of all of the records reveals some inconsistencies on damages issues, which may cast a doubt on the narrative put forward by the plaintiff.
It is perhaps difficult to reconcile the plaintiff's suggestion that it all came flooding back with his other evidence that it never left him, and he remembers it and is reminded of it every day. His evidence as to the nature of the abuse is of course quite specific, including as to timing, place and event. It is difficult to accept such a precise recollection in terms of timing, although not difficult to accept a precise recollection of the type of conduct engaged in by Mr Swain.
The symptoms suggested were chronic and episodic depression including insomnia, lack of interest, drive and motivation withdrawal, difficulties with concentration and a sense of foreshortened future.
According to A/Prof Quadrio, all of these symptoms began to emerge over the plaintiff's developmental years as a result of the severe abuse that he suffered. He developed symptoms of PTSD and depression, insomnia, intrusive preoccupation, mistrust, guilt, irritability, anxiety, anger, a sense of difference and avoiding crowds, including withdrawal from family and friends. His parents noted changes in him, but the plaintiff felt unable to disclose or explain. Again, according to A/Prof Quadrio and studies, this is common in abused children. Disclosure is less likely when there is a very intrusive abuse by a person who is close to the child. According to A/Prof Quadrio, the plaintiff was powerfully affected by the findings of the Royal Commission. It intensified the trauma. Again, A/Prof Quadrio noted this was the case for many survivors.
Importantly, there was a further revival of the trauma when the plaintiff learned about Mr Swain's extensive activities and the apparent systemic cover up. This led to further anger, shock and sense of betrayal. According to A/Prof Quadrio, the abuse that the plaintiff suffered is at the most extreme level of traumatic impact, and that it involved a perpetrator in a position of trust and abuse that was ongoing and penetrative in force. The plaintiff's once promising trajectory was derailed, leading to lifelong post-traumatic and depressive symptoms and systematic substance abuse. A/Prof Quadrio considers that the prognosis would be guarded. She considers that the plaintiff needs long-term therapy with weekly sessions for two to three years. His substance abuse problems require counselling. He requires therapies which will cost between $250 and $350 per session. He remains hypervigilant, mistrustful and withdrawn.
When A/Prof Quadrio examined the plaintiff in June 2022, she observed that there was little change in his mental state. She felt that his anxiety and depression were probably worse because of the legal proceedings. The medication makes him lethargic. He sleeps for days at a time. He has no social life. He is anxious a lot of the time. The plaintiff says he will never be able to tell anyone everything that Mr Swain did to him. He says it is difficult to go to sleep unless he is exhausted. His mood is never high. He has no social interest.
Dr Roberts assessed the plaintiff via Zoom on 28 October 2021. He prepared a report dated 30 November 2021. He was then asked to prepare a further report based on additional documents; that further report is dated 31 August 2022.
Dr Roberts considered that the history presented by the plaintiff reflects a development of PTSD consequent of the abuse that he suffered at the hands of Mr Swain. Further, he opines that the plaintiff's PTSD is worse in the context of reminders such as the Royal Commission.
Dr Roberts considered that the limited treatment was a reflection of the initial diagnosis of bipolar disorder. He considered that the plaintiff's depressive symptomology was explained by his PTSD. Dr Roberts considered that the plaintiff's ability to pursue a normal life and his capacity to work had been compromised by his psychiatric condition. The plaintiff's future was largely dependent on his motivation and his ability to abstain from substances. He noted that the plaintiff generally led a quiet and restricted lifestyle, albeit he could manage his own house. Dr Roberts disagreed with the level of treatment suggested by A/Prof Quadrio.
On 11 February 2016, the plaintiff reported struggling with depressed mood and anxiety. He referred to the family issues. He had been drinking 10 beers a day. He continued to consult Dr Hernandez, complaining of mood and motivation difficulties, without reference to the events the subject of these proceedings.
On 3 June 2016, he again attended saying he was suffering from severe depression, but he was reluctant to see a psychologist or psychiatrist. He was taking medication. He was doing the lawns and household chores. His wife would be filing for a divorce.
In 2017, the plaintiff was diagnosed by Dr Hernandez as being in the major depressive phase of bipolar disorder (this diagnosis was not pressed during these proceedings).
In his report of 8 February 2016, Dr Hernandez referred to the plaintiff as suffering from severe major depression, longstanding without treatment, with multiple factors including a difficult childhood, marital breakdown, alcohol dependence and abuse and unemployment.
This is a case in which the evidence is overwhelmingly to the effect that Mr Swain was abusing boys in the primary school in the 1980s, and well before. The plaintiff says he was one of them. His evidence is not remarkably different to that of many of the other boys who were abused and whose statements had been admitted into evidence in these proceedings. The fact that he did not complain or report it at the time or that he has kept it secret for so many years is not a basis for complete rejection of his evidence.
The defendant has not pointed to any particular aspect of the plaintiff's description of events involving Mr Swain which is inherently unlikely, other than raising the suggestion that the school grounds would have been locked on the weekends. I accept the difficulties for the defendant in adducing specific and direct evidence as to what happened at the school in the 1980s, but pointing to difficulties in adducing contrary evidence does not lead to an elevation in the standard of proof for the plaintiff or result in the drawing of any inferences against the plaintiff. The ordinary limitation periods do not apply to this type of action. That may make the obtaining and production of evidence difficult but those difficulties impact on both parties.
Further, I do not accept the direct criticism raised of the plaintiff in cross-examination that he was blaming Mr Swain for everything that had happened to him and that - in some way - life is about choices (and he made plenty of bad ones) provides some basis for rejecting his version of events. It may be that when it comes to assessing damages and addressing causation, careful consideration needs to be given to a number of other factors which are relevant.
Nor is it necessary to make a finding about every particular act which the plaintiff recalls, or precisely when it occurred or in what circumstances it occurred. Evidence of historical sexual abuse by a person in a position of authority happening many years ago should be viewed in that context. The number of times that Mr Swain abused the plaintiff in the caravan or in the classroom, and precisely what he did to him and how many times he did it, is not determinative of whether the type of abuse occurred or how much he should be receiving by way of damages.
It is sufficient to find (as I do) that when the plaintiff was in Year 6 at DLS Revesby Heights, he was assaulted, abused or molested on many occasions by his Year 6 teacher, Mr Swain. This abuse took the form of genital touching and rubbing in the classroom, leading to masturbation and penetration in the caravan.
The plaintiff kept this abuse secret. He did not tell his mother or his stepfather. He did not tell the school. Ultimately, he did not tell his wife.
I accept that he experienced feelings of guilt, shame and anxiety from the time the abuse occurred. That does not mean that he was unable to function at school. He plainly was. Indeed, he had periods at school when he seemed to be doing well. He did not leave school because he failed Year 11, as he did not. His performance in Year 11 was satisfactory.
There may be a number of explanations for him turning to drugs in Year 12, and it is not necessarily the case that turning to drugs must be a reflection of the sexual abuse he suffered. Many young people turn to drugs and become addicted without suffering from pre-existing trauma or even difficulties at home. Plainly, the plaintiff was suffering from some family difficulties and they may have impacted upon him.
Having said that, it is important to observe that, in cases of historical sexual abuse, there may be many things that have happened in a person's life which can and do alter the course of the person's life. The exercise does not merely involve starting when the plaintiff turned 18 and compensating him for the rest of his life, as if there were no other factors which might have impacted upon the course of his life. I will say more about this when assessing damages.
At this stage, it is only necessary to say that I accept the plaintiff suffered sexual abuse at the hands of Mr Swain when he was in Year 6 at school, and I accept that the abuse was serious and reasonably regular during Year 6.
The defendant admits that it owed a duty of care to the plaintiff and was in breach of that duty of care, in that it ought to have known the propensity of Mr Swain to so behave. It is thus unnecessary to make any findings about issues such as a duty of care, the risk of harm and breach of duty of care.
There is ample evidence to the effect that the defendant was aware of the propensity of Mr Swain to so behave. It received at least two complaints about his behaviour prior to the abuse of the plaintiff. It rejected one out of hand, even though it had previously said in respect of the other complainant that it would keep an eye on Mr Swain, and it was better that he be kept under supervision of the school, rather than being sent elsewhere.
These findings having been made, the defendant accepts that it was negligent and that it would be liable to pay damages to the plaintiff assessed under the CLA, albeit that it says that the damages would be small.
At least generally, vicarious liability only arises when the act can be said to be in the course of or scope of employment. Yet, as was observed in Prince Alfred College, [6] the identification of a general principle for vicarious liability has eluded the common law for a long time. The question remains whether the defendant employer should be vicariously liable for the deliberate and criminal conduct of Mr Swain, when it was not part of his duties to abuse his students.
In Lloyd v Grace, Smith & Co, [7] the employer was held vicariously liable for the conduct of its employee, a managing clerk in the conveyancing business, even though the wrongdoing of the clerk was intentional and not undertaken in furtherance of the employer's interest. Similarly in Morris v CW Martin & Sons Limited, [8] the employer was held to be vicariously liable for the conduct of an employee who stole a mink fur, when the employer had placed a fur in the care of the employee. The Court accepted that, although he was behaving dishonestly, what he was doing was done in the scope of his employment.
There are thus cases in which an employer has been held to be liable even for criminal conduct committed at the workplace.
On the other hand, in the very well-known case of Deatons Pty Ltd v Flew [9] (often relied upon as a basis for rejecting the imposition of vicarious liability), the employer was not held liable for the conduct of a barmaid/employee who threw a glass at a customer in an unprovoked attack on the customer.
Again, as explained in Prince Alfred College, [10] Canada has taken a more expansive approach to the question of vicarious liability, particularly when it involves sexual abuse by an employee. In Bazley v Curry, [11] the Court accepted that it was appropriate that the employer be vicariously liable for sexual abuse by an employee when there was "a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom".
In Lister v Hesley Hall Ltd, [12] a United Kingdom case involving sexual abuse by a warden at a boarding school, the Court (per Lord Steyn) accepted that the school was vicariously liable for the conduct of the warden because the school undertook to care for the boys through the service of the warden, and thus there was "a very close connection between the torts of the warden and his employment". [13]
In Australia, the High Court has not yet determined a case in which the question of the circumstances in which an organisation has been held vicariously liable for the conduct for sexual abuse committed by a person under its control but, the issue was raised and discussed at some length in Prince Alfred College. Having said that, the question determined in the Court related to whether an extension of time should have been granted, rather than whether the defendant should be vicariously liable for the conduct of a boarding house master employed by the school.
The observations of the Court in Prince Alfred College must provide some guidance to the circumstances in which, in a case such as this, the defendant employer will be vicariously liable for the conduct of its employee who sexually abused a student.
Firstly, as the Court observed (per French CJ, Kiefel, Bell, Keane and Nettle JJ), [14] the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability. The fact that the conduct of Mr Swain must be viewed as criminal conduct does not, of itself, preclude the possibility of the defendant being vicariously liable for his conduct.
Having said that, as the Court also observed, the fact that employment affords an opportunity for the commission of a wrongful act is not, of itself, a sufficient reason to attract vicarious liability. [15] That Mr Swain's job required him to work with boys, thus providing him with the opportunity to molest them is not, of itself, a sufficient reason for the defendant to be vicariously liable for Mr Swain's conduct.
The key observation as it relates to this case is as follows: [16]
" …
Even so, as Gleeson CJ identified in New South Wales v Lepore and the Canadian cases show, the role given to the employee and the nature of the employee's responsibilities may justify the conclusion that the employment not only provided an opportunity but also was the occasion for the commission of the wrongful act. By way of example, it may be sufficient to hold an employer vicariously liable for a criminal act committed by an employee where, in the commission of that act, the employee used or took advantage of the position in which the employment placed the employee vis-à-vis the victim.
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."
In addition to the observations of the majority, Gageler and Gordon JJ observed: [17]
"We accept that the approach described in the other reasons as the "relevant approach" will now be applied in Australia. That general approach does not adopt or endorse the generally applicable "tests" for vicarious liability for intentional wrongdoing developed in the United Kingdom or Canada (or the policy underlying those tests), although it does draw heavily on various factors identified in cases involving child sexual abuse in those jurisdictions.
The "relevant approach" described in the other reasons is necessarily general. It does not and cannot prescribe an absolute rule. Applications of the approach must and will develop case by case. Some plaintiffs will win. Some plaintiffs will lose. The criteria that will mark those cases in which an employer is liable or where there is no liability must and will develop in accordance with ordinary common law methods. The Court cannot and does not mark out the exact boundaries of any principle of vicarious liability in this case."
As it turned out, because the Court determined that the plaintiff should not have been granted an extension of time, Prince Alfred College did not present as an opportunity to determine the question of whether the defendant was vicariously liable for the conduct of the boarding master.
It is not necessary that I undertake a review of other cases, except to mention three.
In DP (a pseudonym) v Bishop Paul Bernard Bird, [18] Forrest J in the Supreme Court of Victoria undertook an extensive analysis in a case involving the sexual abuse of a child by a priest. The facts and circumstances in that matter were quite different because the question did not involve the employment relationship.
The guidance provided in Prince Alfred College is thus more directly relevant to this matter than in DP. However, his Honour's careful and extensive analysis of the circumstances in which vicarious liability may be imposed (even though the relationship is not one of employment) demands attention. As his Honour said in DP at [178]:
"As has been seen, other jurisdictions have moved away from the position advocated by the Diocese. The statements of the High Court in Prince Alfred College demonstrate, I suggest, that there is room for an Australian court to adopt a robust and contemporaneous approach to vicarious liability drawing "heavily on various factors identified in cases involving child sexual abuse" in overseas jurisdictions. In such cases, courts will need to "make and develop the common law, as distinct from discovering and declaring it", which may involve making judgments about "[i]dentification, modification or even clarification of some general principle or test … in the context of, and by reference to, contestable and contested questions."
Similarly, the observations of the Victorian Court of Appeal in Roman Catholic Trusts Corporation for the Diocese of Sale v WCB, [19] to the effect that the determination of the question of vicarious liability for the conduct of a parish priest would substantially depend on the relevant nexus between the authority and power vested in him as a parish priest and his abuse of the plaintiff, may be applied to this matter.
In Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird, [20] in this Court, Schmidt AJ determined that, contrary to the defendant's position, there was a relationship of employment between the childcare centre and the childcare worker who sexually abused young children. Like I have done, her Honour reviewed the Court's observation in Prince Alfred College and applied them to the facts of the matter. Her Honour accepted that the childcare centre was vicariously liable for the worker's wrongful acts. She did so on the basis that:
1. The roles which the childcare centre had applied to the worker placed him in a position of considerable power and trust, which he abused;
2. Those roles gave the worker the opportunity to have close contact with children;
3. The childcare centre gave the worker authority by effectively leaving him unsupervised when he engaged in such conduct;
4. The lack of supervision permitted him to not only achieve intimacy with his young victims, but to control them; and
5. It was the worker's performance of his roles that he was given which created the occasion for his wrongful acts.
In my view, the defendant is vicariously liable for the conduct of Mr Swain in abusing the plaintiff because:
1. The defendant placed Mr Swain in a position of power, trust, authority and control over the plaintiff when the plaintiff was a young boy (in Year 6).
2. Even in respect of the acts of Mr Swain in his caravan, Mr Swain used that position of power, trust and control over the plaintiff to require him to attend at the caravan, even on the weekend.
3. The position of Mr Swain vis-à-vis the plaintiff provided both the opportunity and the occasion for Mr Swain's abuse of the plaintiff. Mr Swain used his position, that is, as the plaintiff's school teacher, to molest and abuse him - both in the classroom and out of the classroom - but always in his capacity as his school teacher. That is, Mr Swain required the plaintiff to come to the front of the class and come in contact with him in the classroom. He did this on occasions towards the end of the class and required that the plaintiff stay back after class. Mr Swain did not require the plaintiff to attend in the school grounds out of normal classroom hours because he was the warden or security or personal caretaker. He dealt with the plaintiff as his school teacher, in circumstances in which his requests of the plaintiff were always made in his capacity as the plaintiff's school teacher. He was thus put in that position by the defendant, such that he could exercise complete authority and control over the plaintiff.
4. Finally, in this case, the defendant was aware of Mr Swain's propensity towards young boys before the plaintiff commenced Year 6. Whilst the defendant accepts that that must result in a finding of negligence against it directly, in my view, the knowledge of the institution as to the propensity of the person who it places in a position of trust, authority and control over children is a powerful factor in determining whether the institution should be vicariously liable for the conduct of its employee in such circumstances. Not only did the defendant provide the opportunity and occasion for Mr Swain to abuse the plaintiff, but it did so with forewarning of his propensity to engage in such conduct.
In the circumstances, I accept that the defendant is vicariously liable for the conduct of Mr Swain in perpetrating the abuse on the plaintiff which I have accepted happened.
It is appropriate to remember what Sir Garfield Barwick said in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, in terms of the assessment of damages:
"14…It ought to be a fair and reasonable compensation for the injuries received. A fair compensation is, of course, less than the removal of the disabilities which the injuries to be compensated entail. It is compensation to the particular claimant, bearing in mind what he was, what he now is, and how he is likely to meet his disabilities…
16. Too little emphasis it seems to me is usually given to the moderation with which the assessment of damages for personal injuries should be essayed by the jury. Mere statement that the compensation is to be fair does not seem to me to be enough. The concept of fairness, with its concomitant moderation, needs explanation and emphasis and the jury needs to be carefully and specifically warned against attempting a perfect compensation. As I shall later point out, they should also be warned against any pseudo scientific or seemingly mathematical calculations. (at p 657)
17. It must be remembered that the plaintiff and the injuries are prominent in the trial. However much deficiencies in the evidence as to the extent of the injuries may be thought to be supplied by reliance on the maxim that all things are presumed against the wrongdoer, fairness is denied if in the assessment of damages as well as in the decision as to liability the position of the defendant is ignored and left out of sight. Emphasis on fairness may well be coupled with a warning against the inclusion of any punitive elements in the assessment. (at p 657)
In this case, there is ample evidence to support the plaintiff's claim that, in more recent years, he has been suffering from PTSD and depression and has been abusing alcohol, and that his enjoyment of life has been severely diminished. There is no reason to doubt his evidence that he has not worked in recent years, and the medical evidence generally favours his claim that he suffers from a long-term incapacity for work. However, there remains a question as to the causal factors which lead the plaintiff into his current predicament and a question as to the level of any incapacity in earlier years.
Any medical opinion that he has been suffering from PTSD since the abuse happened when he was in Year 6 must be treated cautiously. Further, to the extent that there are historical records or medical records which predate the disclosure of his long-held secret, they do not necessarily support some of his evidence as to the level of symptoms from which he says he has been suffering since the abuse.
It is not apparent from the only contemporaneous records, being the school reports, that the plaintiff's level of symptomology was such that would support a diagnosis of PTSD whilst he was at school, or that impacted upon him such that he could not do his schoolwork.
He may have had a positive relationship with Mr Crowe, but Mr Crowe's reports do not suggest that he was experiencing significant difficulties at school or that he was in any way depressed. Further, his statements that he had turned to drugs in Year 11, that he failed Year 11 and then was kicked out early in Year 12 because the school did not want his "type" are inconsistent with the mid 1990s sentencing records and the school reports. There is reference to him seeking to become a cadet in the air force.
When the plaintiff came before Sully J in the Supreme Court on 16 February 1996 for breaches of recognisance, his Honour referred to the earlier remarks on sentence of Campbell J on 17 June 1993. His Honour (Campbell J) summarised the plaintiff's subjective features in 1993 as follows:
"The prisoner is now twenty-two years old and unemployed. He resides with his girlfriend with whom he has had a stable relationship for some four years. He comes from a good and supportive family. He did well after leaving school at Year 11 to follow a family tradition and enter the RAAF. However, some six weeks before entry as an apprentice he was in a bicycle accident and fractured his knee and wrist which put an end to that career.
Following that problem and others associated with the death of his grandfather, it is clear that he fell into bad company. He then became involved in relatively minor crime. He is noted by Det Sgt Seedman to be an associate of the criminal class, and after conviction for driving offences in the Children's Court he was placed on a recognizance to be of good behaviour in August 1982 for receiving a motor vehicle. He was still upon that recognizance at the time of the offence.
It is to be noted that in November 1991, when being spoken to about the robbery and killing, he said, 'That's crazy. I'm into cars, nothing like that.'
The reports of Dr Dent and the Probation officer, Miss Harley, are encouraging and there appears to be room for belief that the prisoner may have learnt a valuable lesson from this experience and, as he claimed to Miss Harley, disassociated himself from his previous companions."
It may be that with the passage of time, the events which engulfed the plaintiff's life when he was in his late teenage years and early twenties have become blurred, but I would prefer the summary of what happened to the plaintiff which was recorded when he was in his early twenties to the recollection of the plaintiff at this time. This has some impact on the plaintiff's claim for damages because the history he provided to both psychiatrists who examined him for the purpose of this case was one of turning to drugs and crime in Year 11, failing Year 11, attempting to commence Year 12 but being asked to leave because the school did not want "his type".
The case he presented in 1993 (as to his subjective features for the purposes of sentencing) was that he left school by choice at the end of Year 11 to pursue a career in the air force. Unfortunately, he had a serious accident which brought that career to an end. It was only after that that he turned to minor crime and fell in with the wrong crowd.
That history also happens to be consistent with his school records. He did not fail Year 11. In fact, there is a certificate from the Board of Studies which records his results which are satisfactory.
His criminal activities (which seemed to be more property-related and as he said were probably induced by the need for drugs) continued until 1996 when he was brought back before the Court. He spent 12 months in prison. At least as far as I can determine, his criminal history ends thereafter. He met his wife in 1997. It seems likely that the development of that relationship brought some stability to the plaintiff's life. He and his wife decided that he would stay home to look after the children. I accept that that was a reflection of his lack of work skills and career opportunities, but it was a decision that they made for the benefit of their family.
There is no evidence of the plaintiff seeking any medical treatment for any particular conditions up to around 2010. On 29 November 2010, he reported to his GP that he was normally very well, had no serious illnesses and never goes to the doctor. On this occasion, he reported with diarrhoea. On 15 February 2011, he reported to his GP saying that he wanted to quit smoking and that he had been smoking for 20 years. He said that he rides BMX bikes and his smoking limits this.
On 2 March 2011, he reported to his GP that his smoking cessation was going well and that over the last 18 months he had been doing high intensity cycling. During the cycling, he had chest tightness. This lasted for hours during the cycling but settled 15 minutes later. He was prescribed Ventolin. His presentation in 2011 was not consistent with him suffering severe psychological symptoms of the type he now maintains.
In 2011, he suffered what was diagnosed as significant scapholunate ligament disruption with widening of the joint. He underwent surgical treatment. In 2012, he visited the doctor from time to time in an attempt to give up smoking and was prescribed medication.
There is no reference to any mental health problems until February 2016. In February 2016, he reported with severe depression referable to a marital breakup 8 months earlier. He said he had occasional suicidal ideation. He referred to being sexually assaulted by a babysitter as a child. He was raised by his stepfather. He referred to the family history of his uncle who committed suicide, the attempted suicide by his stepfather and the suicide of his friend. He said he had no social network and severe social withdrawal. He was unemployed, suffering significant financial difficulties and felt he was going to lose his home. He described himself as a stay-at-home dad. He said he had longstanding depression which had worsened over the last few years, particularly with alcohol abuse and severe drug dependence.
Dr Hernandez suggested that there were multiple factors contributing to the plaintiff's severe major depression including a difficult childhood, marital breakdown, alcohol dependence and abuse (relatively recent). He was unemployed but had been cut off from Centrelink. Further, he was diagnosed with bipolar disorder.
In 2019, he presented to his GP with anxiety. He referred to an AVO against his wife. His wife had been texting abusive texts. He had to call the Police five times. She had been scheduled. His kids were living with him full-time. He subsequently presented again in respect of problems with his wife. He was concerned that there was a deterioration in her mental health. The house had to be sold and he suspected this was the trigger for her deterioration. His children had no contact with her. His son had no contact with his mother and limited contact with his daughter. The reason for the GP visit was described as bipolar spectrum disorder.
In 2018, the plaintiff was placed on the disability pension. Further, even when consulting Mr Sorbello in 2020, he said he was still experiencing suicidal ideation exacerbated by his wife's vindictiveness. On my review of the notes of the plaintiff's consultations with Mr Sorbello, it is apparent that the problems the plaintiff was experiencing with his former wife were escalating throughout 2019 and 2020. This is also apparent from records suggesting that he sought Police assistance with his wife's behaviour. According to the notes of the appointment of 16 May 2020, the plaintiff described his wife as evil; he said his wife was set out to destroy him. Mr Sorbello recorded the relationship break-up was dominating his life at the present time. He had discovered that his wife had a boyfriend and that was affecting him.
By June 2020, the plaintiff's former wife had given him notice to vacate the house. He says he was using internet dating sites for casual relationships. Again, the consultations throughout 2020 focused more on his feelings and difficulties dealing with his former wife, albeit there continued to be some reference to the sexual abuse perpetrated by Mr Swain. On the plaintiff's case, I should ignore all of this.
There is an absence of evidence from any people who knew him, including family members over the years. That is a little surprising (although the split from his wife and her mental health issues would tend to suggest that she would not have been able to be a witness). However, the only inference that I might draw about the absence of any corroborating witnesses is that it would not have made the plaintiff's case any better. [21]
The onus is on the plaintiff to prove causation, whether under the CLA or at common law. [22] It is necessary for the plaintiff to establish that but for the conduct of Mr Swain (for whom the defendant is vicariously liable), he would not have suffered the losses that he claims. In this case, having regard to the extensive nature of the plaintiff's claims, that necessarily requires the plaintiff to establish that but for Mr Swain's conduct, he would not have left school in Year 12, he would not have turned to drugs, he would not have engaged in criminal conduct, and that he would have had a career in one industry or another.
In Rosenberg v Percival, [23] Gummow J explained the role of causation as follows at [85]:
"It is well understood that the legal concept of causation differs from notions of causation which appear in the speculations of philosophers and the perceptions by scientists of the operation of natural laws. This is because the legal concept of causation is primarily concerned with attributing responsibility. It has been said that the test of causation is one of common sense, but, as Lord Hoffmann has observed:
'[C]ommon sense answers to questions of causation will differ according to the purpose for which the question is asked. Questions of causation often arise for the purpose of attributing responsibility to someone, for example, so as to blame him for something which has happened or to make him guilty of an offence or liable in damages. In such cases, the answer will depend upon the rule by which responsibility is being attributed.'
Again, in Chappel v Hart, Gaudron J said:
'Questions of causation are not answered in a legal vacuum. Rather, they are answered in the legal framework in which they arise…'"
In assessing causation, it is necessary to look at the events which actually occurred and assess the causal link between the tortious conduct of the defendant and those events.
In March v E & MH Stramare Pty Ltd, [24] Mason CJ said:
"Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact - to be determined by the application of the but for" test - and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing …"
This case presents as an example of the difficulties associated with disentangling various causal factors (the defendant bears the onus of disentangling) but it also presents as an example of the principle that the onus remains on the plaintiff to establish causation. For example, for him to recover economic loss for the past more than 30 years, the plaintiff must establish that his alleged incapacity for work was caused by Mr Swain's conduct. If the plaintiff has established that, then the onus shifts to the defendant to establish the extent to which any losses were caused by other factors.
Causation is a question of fact. As was observed in Fox v Percy [25] , the fact-finding process requires consideration of "contemporary materials, objectively established facts and the apparent logic of events". [26]
In this case, the plaintiff provided a history to the expert psychiatrists and gave evidence in these proceedings suggesting that his school life had been severely impeded and affected by the abuse and that this resulted in him being asked to leave school and then turning to drugs and crime. The plaintiff may perceive that his life was derailed by Mr Swain's conduct, and I have accepted that he would have been experiencing feelings of guilt, shame and anxiety but I am not satisfied that he has established that he failed Year 11 or that his taking of drugs was caused by Mr Swain's conduct. The contemporaneous material, including the school reports and the sentencing material tend to suggest otherwise. He has not established either that he has done no work for the whole of that period, or that all of his periods off work have been caused by Mr Swain's conduct. That makes the assessment of loss over such an extended period particularly challenging.
Further, I do not accept that the current state of the plaintiff's mental health (which renders him unfit for work and needing treatment) is all related to Mr Swain's abuse. The notes and records of Dr Hernandez tend to suggest that the plaintiff was complaining of severe depression following his marital breakup in 2016. The notes and records of Mr Sorbello, to whom the plaintiff was referred on the recommendations of his solicitors in this case and for the purposes of this case, refer not only to the impact of Mr Swain's abuse, but quite specifically to the difficulties the plaintiff was experiencing in 2019 and 2020 in dealing with his former wife, who plainly had her own mental health issues.
I do not accept that the marital problems were all caused by the plaintiff's symptoms or indeed that the symptoms his wife developed were in some way related to the plaintiff's symptoms. As I have indicated, I accept that the plaintiff's symptoms worsened in recent years but, in my view, his depression and anxiety is multifactorial.
On my analysis of all of the evidence, the findings I make are that:
1. Since the abuse perpetrated on him by Mr Swain, the plaintiff has suffered from feelings of guilt, shame and anxiety consequent upon that abuse.
2. Those feelings impacted upon him whilst at school but they did not reach a level such that he was unable to do his school work or was taking significant periods of time off school. I do not accept that the abuse affected him to such an extent that he was doing poorly at school in Year 11. Further, the information provided by the plaintiff in the sentence proceedings (that is, within a few years of the events) suggest that he left school to become a cadet and then had an accident, thereby making his entry into the air force impossible. This provides an explanation as to what happened to the plaintiff when he was 17/18 years old. It is not a history obtained by the experts who examined him recently.
3. I am not satisfied that the plaintiff's use of drugs was caused by Mr Swain's abuse. The retrospective opinion of the psychiatrists is thus affected by this finding. It might have been a contributing factor, but I am not satisfied that but for the abuse he would not have consumed drugs.
4. Over time, he dealt with any psychological issues (that is any guilt, shame and anxiety) by hiding them, using drugs and alcohol, but dealing with issues in such a way that he was able to lead a life that involved forming a relationship and looking after his children. He could not have been on drugs, intoxicated or behaving erratically at such a level that he was incapable of looking after his children, having regard to the arrangements he and his wife put in place over a number of years.
5. Further, it is one thing to mask symptoms, but it is another to falsely identify another cause for the symptoms. Having regard to Dr Hernandez's notes and reports, in order to accept the plaintiff's claim of complete unfitness for work arising out of the abuse, I would need to accept both that the plaintiff was deliberately masking his symptoms when he consulted Dr Hernandez in 2011 and that the extensive references to his depression being linked to the problems with his marriage and his wife's mental health problems should be ignored.
6. I accept that the emergence of so many people subject to historical sexual abuse and the Royal Commission brought it all flooding back to the plaintiff, leading him to seek relief and compensation through legal representation. A/Prof Quadrio's opinion supports the finding that the plaintiff's symptoms were intensified during the Royal Commission process. I thus accept the evidence of Mr Sorbello and the joint medico-legal experts as to the state of the plaintiff's mental health from 2016 onward and their prognosis for the future. However, his symptoms were at least in part related to his marriage problems (which emerged prior to it all coming flooding back).
7. I accept that since 2016, the plaintiff has been suffering from depression and PTSD.
8. I accept that prior thereto, he was suffering from symptoms in the nature of feelings of guilt, shame and anxiety, but I am unable to conclude that his symptoms reached the level that he now maintains, at least up to the time that it all came flooding back. I am not satisfied that he was completely incapacitated for work or that he could not perform his ordinary household tasks or that he could not look after his children and maintain a stable relationship with his wife.
9. I do not accept that his marriage breakdown was caused solely by the emergence of any increase in symptoms. Sadly, his wife developed her own mental health problems, and I am satisfied that his marriage breakup was, to a large extent, caused by those issues.
I accept that the approach advocated by the plaintiff is appropriate in this matter. I have accepted that the plaintiff would have suffered from feelings of shame, embarrassment and anxiety, but he was able to control and mask those emotions for a lengthy period.
Any assessment for aggravated damages could include some allowance for the way in which the case was conducted. In this matter, the defendant originally disputed many issues but filed an amended defence limiting the issues. However, during cross-examination, the defendant put directly to the plaintiff that he suffered no abuse at all, albeit that assertion was subsequently withdrawn. The plaintiff said that this made him feel angry. Particularly in cases of historical sexual abuse, it will be appropriate to have regard to the way in which the case was conducted and how that might have impacted upon the plaintiff in assessing whether aggravated damages should be awarded.
I consider the sum of $300,000 is the appropriate sum for both general damages and aggravated damages.
In assessing what the plaintiff might have done but for Mr Swain's conduct, after some discounting on the basis that the plaintiff might have had some residual earning capacity since he has left school, the plaintiff claims the sum of $3,645,533 plus superannuation in the sum of $401,008. He then claims interest on this sum during the period 1993 and 2022, at the average rate of 7.4%.
For the future, the plaintiff claims loss on the basis that he would have worked until the age of 70. Applying the 3% tables with a further discount for vicissitudes of 15%, the plaintiff claims the sum of $965,925 plus superannuation of $115,911.
The defendant submits that the plaintiff should receive nothing for loss of earning capacity, suggesting that his losses are all attributable to his life of crime or other non-compensable factors.
A number of things must be said about the plaintiff's claim, including that:
1. It assumes acceptance of the proposition that, as a result of Mr Swain's conduct, the plaintiff has been unfit for all forms of work throughout the whole of his life, other than to a very limited extent.
2. It assumes likely earnings much greater than average weekly earnings.
3. It is made on the basis that, as the plaintiff said he might have liked to have been a businessman, he might have achieved success as an economist or a managing director of a company.
I do not accept that the task of assessing past economic loss involves merely accepting the opinion of psychiatrists who examined the plaintiff in recent times and then undertaking some mathematical exercise based on speculative projections by a vocational assessor.
For the purposes of assessing his past loss of earning capacity, it is appropriate to consider various periods of the plaintiff's life as follows:
1. There was a period after he left school when he was involved in criminal activity to feed his drug habit. Plainly, he would not be entitled to any allowance for loss of income whilst he was in prison [29] but that was only for a period of 12 months. However, by his own admission, his period of criminal activity probably extended over a period of around 5 years.
2. For a period thereafter, he was doing some work. There is sufficient reference in the histories provided by the plaintiff to him doing some work. Yet, the plaintiff is somewhat vague about what work he was performing and for what periods he was working. Understandably, there are no longer any contemporaneous records.
3. Thereafter for at least 10 years, he was involved as the primary caregiver of his two children.
4. Over the past 10 years, he has suffered from depression, but the causes of that depression are multi factorial.
I do not accept the claim for past losses put forward by the plaintiff. Firstly, the contemporaneous records suggest that he left school to pursue a career in the air force. He did not fail Year 11. Further, whilst it is always possible that if the plaintiff had completed his high school certificate, had not turned to drugs and had not engaged in criminal activity for a period, he might have gone on to have a successful career in one industry or another, the idea that he would become a managing director or economist is completely speculative.
His claim should be properly understood as a "loss of opportunity claim" in the sense there was a chance he would have gone on to have a successful career, but also a chance that he would not have (Malec v J C Hutton Pty Limited (1990) 169 CLR 638; [1990] HCA 20 at 645 per Dean, Gaudron and McHugh JJ; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 at [349] to [350] per Mason CJ, Dawson and Gaudron JJA).
In my view, in circumstances in which what might have happened to the plaintiff is simply not known (because, on the plaintiff's case, his life was derailed when he was in Year 6), to the extent that any assessment is based on a weekly figure, the use of average weekly earnings is appropriate. The use of average weekly earnings takes account of both the potential for the plaintiff to have earned a higher sum and the potential for him to have earned a lower sum.
Although the claim is described as a claim for past loss of income, it is really a claim for past loss of earning capacity. The plaintiff must be compensated for the diminution in earning capacity. The Court must assess damages based on the difference between what his earning capacity might have been and what it has been. Any diminution in earning capacity must be productive of financial loss (Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347).
In a case in which tortious conduct is said to cause psychiatric but not physical injury, and where there is some doubt as to when the plaintiff developed a recognised psychiatric injury - as opposed to what may be described as emotional instability and feelings of guilt and shame - there may be a number of factors which contributed to the plaintiff's absence from work. Again, in my view, this is such a case. The plaintiff's performance at school was good and the reference to other issues, such as family problems, tends to suggest that, whilst the abuse by Mr Swain was a contributing factor, there were a number of other factors at play. The evidence (not referred to by the plaintiff) that he left school to join the air force and that he did not fail Year 11 is telling.
In those circumstances, I do not accept the plaintiff's claim that everything that has happened to him can be linked back to the abuse by Mr Swain, albeit I accept that "it all came flooding back" in 2016.
In some cases, particularly this type of case, it may not be possible to assess past loss on some weekly sum and for any particular period. As I said in Ramsey v Denton [30] at [58]:
"Awarding a buffer for future economic loss is both well-known and regularly adopted. Whilst a more precise calculation might generally be preferred, a buffer would be permissible when the task of assessing loss of earning capacity cannot be undertaken with reference to precise weekly amounts due to the uncertainty of the claimant's likely future circumstances and the number of variable factors which would render a more precise assessment merely artificial and speculative."
Whilst I acknowledge that the award of any buffer for past loss is less usual than in respect of future loss, this is the type of case where it is appropriate to award a buffer, rather than attempt some precise mathematical calculation.
In PP v DD, I observed:
This reflects the likelihood that he might have had a greater stability in his employment and a greater capacity to maintain employment for a lengthy period, if not for his overarching feelings consequent upon the sexual assaults. It reflects the loss of a chance analysis set out in Malec v Hutton. Whilst Malec v Hutton was more concerned with assessing damages for potential events, the same approach can be taken with respect to assessing loss in respect of events which have happened in the past or might have happened over a long period.
As the Court emphasised:
"The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place." [31]
I assess the plaintiff's loss of earning capacity up to 2016 by way of a buffer in the sum of $150,000. This buffer reflects a general diminution in earning capacity but is heavily discounted because of other matters which otherwise interfered with the plaintiff's exercise of his economic capacity, such as his criminal activities and his decision not to work whilst raising his children. I do not accept that the plaintiff has established that his said to be long periods away from work were caused by Mr Swains' conduct. This is primarily because I do not accept the plaintiff's narrative as to his high school years and periods after leaving school. The contemporaneous records are not consistent with his narrative.
I hasten to add that I am not suggesting that a person who, because of an inability to work, does not work and at the same time looks after the children is in some way disentitled to loss of income for such a period. However, in a case such as this, wherein the objective evidence tends to suggest the level of symptomology from which the plaintiff was suffering during the relevant period might not have been at a high level, then the decision not to work was more a function of prioritising other matters, rather than his inability to work.
Further, although I accept that for the period 2017 to 2022 the plaintiff has not worked and has been unfit for work because of the increase in symptomology, it is again clear from the records of Mr Sorbello that the plaintiff's psychological condition has been very much affected by the difficulties with his wife. On the documents I have seen, his wife has suffered from mental health problems which caused difficulties in the marriage.
On each of 8 February 2016, 11 February 2016 and 3 June 2016, the plaintiff attended on Dr Hernandez complaining of severe depression, which he related to family issues. He originally identified his marital break-up 8 months earlier, that is, in 2015. In 2017, he was diagnosed by Dr Hernandez as suffering from major depressive phase of bipolar disorder (although that diagnosis was not pressed in these proceedings).
In 2018, the plaintiff was placed on the disability pension. Further, even when consulting Mr Sorbello in 2020, he said he was still experiencing suicidal ideation exacerbated by his wife's vindictiveness. On my review of the notes of the plaintiff's consultations with Mr Sorbello, it is apparent that the problems the plaintiff was experiencing with his former wife were escalating throughout 2019 and 2020. This is also apparent from records suggesting that he sought Police assistance with her behaviour.
By June 2020, the plaintiff's former wife had given him notice to vacate the house. He says he was using internet dating sites for casual relationships. Again, the consultations throughout 2020 focused more on his feelings and difficulties dealing with his former wife, albeit there continued to be some reference to the sexual abuse perpetrated by Mr Swain. On the plaintiff's case, I should ignore all of this.
I do not accept that the current state of the plaintiff's mental health (which renders him unfit for work and needing treatment) is solely related to Mr Swain's abuse. The notes and records of Dr Hernandez tend to suggest that the plaintiff was complaining of severe depression following his marital breakup in 2016. The notes and records of Mr Sorbello, to whom the plaintiff was referred on the recommendations of his solicitors in this case and for the purposes of this case, refer not only to the impact of Mr Swain's abuse, but quite specifically to the difficulties the plaintiff was experiencing in 2019 and 2020, in dealing with his former wife.
I do not accept that the marital problems were all caused by the plaintiff's symptoms or indeed that the symptoms his wife developed were in some way related to the plaintiff's symptoms. As I have indicated, I accept that the plaintiff's symptoms worsened in recent years but, in my view, his depression and anxiety is multifactorial.
I accept that the plaintiff has been unfit for work because of depression since February 2016. The date of this judgment is 10 February 2023. The average weekly earnings (net) increased from $946.20 per week in 2016 to $1090.50 per week in 2022 (an increase of $144.30 per week over the five-year period).
The proper approach of the assessment of damages in circumstances where a psychiatric illness is caused by a number of factors, including the tortfeasor's conduct, is to discount to the extent that the other factors have contributed to the illness. This reflects the likelihood that the plaintiff's mental health problems arising from non-compensable factors were such that, even the Royal Commission bringing everything back to him, he would have experienced those personal difficulties emphasised in the records of the GP and psychologist. I will allow a 50% discount.
The plaintiff's claim for loss between 2016 and 2022 thus amounts to the full period of average weekly earnings on a net basis:
1. the sum of $49,246.60 for 2016;
2. the sum of $50,055.20 for 2017;
3. the sum of $51,147.20 for 2018;
4. the sum of $52,239.20 for 2019;
5. the sum of $54,355.60 for 2020;
6. the sum of $55,772.60 for 2021; and
7. the sum of $56,706.00 for 2022,
discounted by 50%, which equates to $184,761.20.