Steen v Trustees of the Diocese of Tasmania [2024] TASSC 3

Steen v Trustees of the Diocese of Tasmania [2024] TASSC 3 | Case summary | Zoe

[51]

The plaintiff, who is now 53 years of age, has brought this action in respect of sexual abuse perpetrated upon him by an Anglican priest when he was a child. The abuse took place on four different occasions between 1981 and 1987, when the plaintiff was aged between 10 and 16. The priest, Louis Daniels, was a prominent staff member and leader of the Church of England Boys' Society (CEBS), and the plaintiff was a member of that organisation. For the sake of convenience and without intending any disrespect, I will throughout this decision, refer to Louis Daniels as "Daniels". The abuse was perpetrated by Daniels during activities either conducted by CEBS or related to its activities.
Daniels is not a party to this action. However, the defendant has admitted that he was employed by it and under its supervision and control at all relevant times. The admitted facts also make clear that the defendant is and was the responsible entity constituting the Anglican Diocese of Tasmania, and was responsible for, and had the care, management and control of CEBS at all relevant times. The plaintiff's claim alleges that the defendant is vicariously liable for the acts of assault which constituted the sexual abuse, and further was negligent in its supervision and protection of him. The defendant has admitted liability in respect of both causes of action. This includes full admissions as to the particulars of the abuse perpetrated by Daniels on the plaintiff and the consequent causation of injury to him.
There are two primary issues which have been litigated in this action. Firstly, in 1994, when the plaintiff was 23 years of age, he engaged a lawyer to take legal action against Daniels and the Diocese in respect of the sexual abuse. The initial approach was made by the plaintiff's lawyer to the then Anglican Bishop, Bishop Newell, and resulted in relatively prompt negotiations between the lawyers representing the plaintiff and the Diocese respectively. Daniels became a party to the negotiations at an early stage, and had separate legal representation. The proposed claim was settled as a result of these negotiations, and on 2 September 1994, the plaintiff, Daniels and Bishop Newell, executed a deed of release. Under the deed, Daniels agreed to pay the plaintiff $34,000 in damages, inclusive of legal costs. In return, the plaintiff provided a full and comprehensive release from any future liability in respect of Daniels and the Anglican Church, including CEBS, Bishop Newell and other associated entities. The deed also included a confidentiality clause. The defendant has pleaded that the deed operates as an absolute bar to the prosecution of the action, and hence provides a complete defence. The precise effect of the deed is in issue but, in any event, the plaintiff claims that it does not prevent this action on either or both of the following bases:
- That the settlement agreement should be set aside by the Court pursuant to s 5C of the Limitation Act 1974, hence rendering the deed void pursuant to s 5C (4).

[54]

As already indicated, the specific acts of sexual abuse, the identification of Daniels as the perpetrator, and the defendant's responsibility for his acts against the plaintiff, both on the basis of its vicarious liability for his conduct and breach of its duty of care to the plaintiff, are admitted on the pleadings. However, the plaintiff gave detailed evidence concerning the abuse, and surrounding circumstances. This evidence was not challenged in cross-examination by senior counsel for the defendant, Mr Read SC. I find in accordance with the plaintiff's evidence concerning these matters. My findings based on that evidence, supplemented by associated and undisputed documentary evidence and facts admitted on the pleadings, are set out below.
The plaintiff was born in Hobart on 14 January 1971 to Thomas and Wendy Steen. Mr and Mrs Steen were married at the time of the plaintiff's birth. However, they separated at the end of 1983 or the beginning of 1984, and were subsequently divorced. The plaintiff has two siblings, a sister born in 1975 and a brother born in 1977.
The plaintiff recalls a happy early childhood, living with his parents and siblings in their home in Hobart. However, it is clear that there were pressures which affected the family at that time. His younger brother was born with cerebral palsy and required intensive physiotherapy throughout the plaintiff's younger years. Both parents had psychological problems. His father, a teacher, had a longstanding drinking problem, which would manifest from time to time. His mother had firm religious beliefs which the plaintiff even then regarded as "strange". The combination led to regular arguments between his parents, although there was no physical violence. The plaintiff's recollection is that the separation at the end of 1983 was largely the result of a relapse of his father's drinking problem, after a long period of abstinence. The plaintiff was in Grade 7 in 1983, and aged 12.
The plaintiff's earliest memory of religious attendance was with his mother at her church. She was a committed member of the Baptist church. However, in early primary school, the plaintiff developed a friendship with a boy whose father was the rector of the local Anglican Church. Through this relationship, he met others involved in that church community and was introduced to and eventually commenced to attend meetings and activities conducted by CEBS.
Whilst CEBS conducted weekly meetings and other activities during the year, the activity of concern to this case is the annual summer holiday camp. These camps were conducted each year during the summer school holidays, in January. They were conducted over six days and were located at the Montgomery Park Camp Site at Conningham. The evidence suggests that this was a relatively remote location. The camp had a public telephone, but use of the phone to contact family was discouraged except in exceptional circumstances. The evidence about supervision is somewhat vague, but it seems that it was ultimately the responsibility of the camp director, assisted by a number of senior and junior leaders. The senior leaders were typically young adults, in their early twenties, and junior leaders were usually older teenagers.
Daniels had been an Anglican priest and heavily involved in CEBS for some years prior to the acts of sexual abuse perpetrated by him against the plaintiff. He was born on 31 May 1947, became involved in the Church as a clergy member in February 1974 and was ordained as a priest on 24 February 1975. A document setting out his history of appointments as a priest, shows that between 1981 and 1982, he held a position as a senior assistant priest at St David's Cathedral. During 1982, he was appointed as the rector of the Deloraine parish.
The same document suggests that he was heavily involved with CEBS from at least 1976. He held the position of Chief Commissioner from at least 1978. Of importance to this case, he was the camp director of the annual summer camps throughout the period during which he perpetrated the relevant acts of sexual abuse upon the plaintiff.
It is admitted on the pleadings that the first act of sexual abuse occurred in the camp conducted either in January 1980 or January 1981. The plaintiff's recollection is that it was 1981, and he has attempted to fix that time by reference to contemporary events. Irrespective of which year it was, I am satisfied that he was approximately 10 years of age at the time and the abuse occurred during his first attendance at such a camp. It also occurred shortly after the first time he met Daniels.
This first occasion has been termed in the pleadings as "the bunk bed assaults". This is a collective term for a series of assaults that occurred on two or more occasions during this camp. The plaintiff described one of these assaults as follows:

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This assault came to an end because the plaintiff rolled over and Daniels "...left the room quickly".
The plaintiff confirmed that these assaults happened more than once. He attempted to protect himself by lying on his front but still remembers Daniels' hands going under his pyjamas. The assaults occurred in a sleeping area that was occupied by other attendees at the camp. They happened at night, after bedtime, when the other attendees where in their bunks. The plaintiff is not aware that any of the assaults was witnessed by other attendees. The plaintiff's evidence is that he was confused by Daniels' conduct, in particular by the conflict which arose from Daniels' authority and position, both as a CEBS leader and a priest, and the plaintiff's instinctive understanding that what was happening was wrong.
The plaintiff did not tell anyone about the abuse. In particular, he did not tell his parents. He continued to be involved in the CEBS movement, and attended further camps. At around the age of 12, he was invited to and did participate in leadership training. He seems to have developed a relatively wide network of friends, both adults and young people of his own age, within CEBS and the wider Anglican community. He was regularly involved in religious observance in the Anglican Church, and underwent the rite of confirmation in 1984.
As already noted, the plaintiff's parents separated in 1983 and were divorced on 14 January 1985. Towards the end of 1984, the plaintiff was living with his father. He received a telephone call from Daniels inviting him to attend the CEBS summer camp in 1985. The plaintiff was a junior leader by that stage. The plaintiff's evidence was that he was flattered by the invitation. This was the first time that Daniels had ever contacted him by telephone.
The second and third acts of sexual abuse took place at the camp in January 1985. The plaintiff was then aged 14 years. The second act, entitled in the pleadings as "the dormitory assaults" took place on the day that the plaintiff arrived at the camp. His father had driven him there but did not stay. Upon arrival, the plaintiff entered the dormitory which housed the junior leaders. The dormitory was empty, except for Daniels. It seems that the other junior leaders and attendees had gone to a nearby beach. The plaintiff described what happened next as follows:

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The plaintiff explained that he felt "pretty paralysed" during this assault. He remembers being held by Daniels while he was being assaulted by him, and the size and weight advantage that Daniels had over him. He was very confused and scared, particularly because of Daniels' position as "the man who represents God". He has to this day recalled the feel "of the moustache on the mouth".
After some time, the plaintiff managed to break free. He went immediately to the beach to find his friends. He did not tell them what had happened.
The third assault, known as "the outdoors assaults" took place at the camp a few days later. The plaintiff was on his way from the camp to the beach to meet other camp leaders who had preceded him there. It was dark. Daniels followed him, caught up with him on the way to the beach and assaulted him. He took him in "a restrictive hug". This assault included kissing "for a long time" with "the tongue in the mouth", and rubbing the plaintiff's groin over the top of his jeans. Eventually, the plaintiff "wriggled out and broke free".
The plaintiff cannot recall any other sexual assaults taking place at that camp. He does recall some inappropriate touching, including hugs and arms around a shoulder, but cannot recall other sexual assaults.
The plaintiff continued his involvement in CEBS after this camp. He did not tell anyone, including his parents, what had happened. In discussing his reasons for this, the plaintiff observed that he was then a very young person who had been abused by a highly regarded and popular priest. The plaintiff was very confused by Daniels' conduct and his own conflicting emotions. He made the point on a number of occasions during his evidence that he felt shame and guilt, but also knew that what Daniels had done was wrong. However, he enjoyed the camps, and it is clear that his involvement in CEBS provided him with an important social network and support, particularly at a time when his parent's marriage was in difficulty. He was finding his home life difficult. He had stayed living with his father, after his parents' separation, mainly because of the proximity of friends in the area. His mother had also commenced attending a church of a different denomination, and entered a relationship with a man there who had strict religious views. The plaintiff described struggling with both the new religion and his mother's new partner.
In the Christmas school holidays of 1986-1987, the plaintiff participated in a road trip with companions from CEBS. The trip took place between Christmas 1986 and mid to late January 1987. The plaintiff was 15 at the time. The purpose of the trip was attendance at a CEBS event on the Gold Coast in Queensland. Seven people, including Daniels and the plaintiff, travelled in two cars. Other participants were fellow CEBS leaders, Sue Clayton, Peter Francis and CD. Ms Clayton was a teacher, aged in her early twenties, who was involved in CEBS through her youth work in the Anglican community. She was the senior member of this group of leaders. Mr Francis was a couple of years older than the plaintiff, and a university student at the relevant time. He had become involved in this CEBS group through Ms Clayton. Mr CD is about the same age as the plaintiff. He was not actually a member of CEBS but attended some of the camps. He met the plaintiff at one of these camps and they became friends.
The trip to the Gold Coast was organised by Daniels and it is clear that he was the person in authority. The plaintiff's evidence is that he found Daniels' involvement in this trip threatening, because of the previous sexual abuse. However, he also wanted to be with his friends. In order to avoid Daniels as much as possible, he elected to travel in the car driven by Sue Clayton. Daniels drove the other vehicle. During the trip, there was an overnight stop-over at Mossman, where the group stayed in Church facilities. There was a party that night during which the group, including those who were under 18, were provided with access to significant quantities of alcohol by Daniels and another adult male from the local parish. The plaintiff's evidence is that he observed that Daniels became focussed on CD. Photographs taken at the party show Daniels holding CD, who was then aged 15, on his lap. Both appear affected by alcohol, the youth extremely so. The plaintiff's case is that this was an example of Daniels' predatory behaviour at the time. It is also significant that this conduct took place in a Church environment and during a Church-related activity. However, the plaintiff also gave evidence that apart from what he regarded as some inappropriate hugs and other types of non-sexual physical activity, he does not recall Daniels attempting to engage in any form of sexual abuse against him during this trip. His evidence was that he did find Daniels' interest in his friend CD "deeply uncomfortable".
The final act of sexual abuse, known as the "river assaults", occurred in March 1987, when the plaintiff was 16 years of age. By this time, Daniels had been appointed as the rector of the Deloraine parish and occupied the rectory associated with that parish. He was the only church official to occupy the rectory, although a "permanent boarder" also lived there.
The relevant events occurred around a meeting of junior leaders of CEBS at the rectory. Those present included the plaintiff, Peter FrancisCD, AB and Sue Clayton. Mr AB was a member of CEBS, roughly the same age and level as the plaintiff and CD. Daniels, of course, was also present. During the course of the meeting, those present went as a group for a walk to the nearby river. The plaintiff became separated from the group during the walk and decided to go for a swim alone in the river. While he was swimming, Daniels approached his location. He asked the plaintiff to go for a drive with him and the plaintiff agreed. His explanation for agreement was that he was nervous to the point of feeling in danger. Daniels also provided him with a purpose for the trip which was to survey a potential camp site for a future CEBS camp. Daniels, in fact, drove to a secluded place at the end of a trail along the river and at that location engaged in the sexual abuse. The plaintiff described this as follows:

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At some point, there were conversations between Peter Francis, CD, AB and the plaintiff in which each of the latter three revealed that he had been sexually abused by Daniels. Peter Francis and CD also gave evidence on the trial. They each confirmed these conversations and disclosures, but their recollections differed as to their timing, in particular whether the conversations took place immediately at the Deloraine rectory on the night of the meeting, or subsequently. These discrepancies are immaterial and none of the witnesses was challenged as to the substance of this part of the narrative.
The upshot of the conversations was that they all felt it necessary to report Daniels' conduct to the Church. Their primary purpose in doing so was to ensure action was taken against him and that he was not put in a positon to commit similar conduct against other young people in the future.
It was decided to inform David Hayman, a young clergy member whom they trusted. With their permission, David Hayman reported the matter to Bishop Newell. Eventually, a meeting was arranged between Bishop Newell, the plaintiff and Peter Francis. The meeting was held shortly after in the Diocesan offices at St David's Cathedral. No one else was present. The plaintiff's evidence is not clear on the degree of detail that he provided to the Bishop but it is clear that he disclosed that Daniels had committed sexual abuse against him. The plaintiff recalls the Bishop asking him if he would be prepared to make a statement in front of a group of senior clergy and whether he gave permission for the Bishop to discuss the matter with more senior colleagues. The plaintiff had made it clear that he wanted the information provided to Bishop Newell kept confidential but agreed to these requests. His recollection is that there was no discussion about referral to police and the Bishop did not ask him what he wanted from their discussion. However, although he found the process stressful and intimidating, he also felt relief that he had "been listened to... and taken seriously". The plaintiff left the meeting with an expectation that there were would be a further meeting.
Peter Francis' recollection largely accords with that of the plaintiff. He remembers that the plaintiff "told him all about his details, and also told the Bishop that there were two others involved and their names". Those were, of course, CD and AB. When asked to elaborate on the detail provided, he said:

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He recalls that there was "some discussion about going to the police but it was never encouraged and that was the situation all the way through". At the conclusion of the meeting, the Bishop asked the plaintiff to provide him with a written statement with respect to Daniels' conduct.
The plaintiff did in fact prepare a written statement, which he forwarded to Bishop Newell by mail after the meeting. The statement is in evidence. It describes two incidents, the bunkbed assaults and the dormitory assault. The detail provided is consistent with his evidence in respect of those assaults. The plaintiff explained that he was concerned about providing this statement because he had not been told how it would be used and did not know if it would be made public or if the information in it would be disclosed to his parents.
A second meeting took place a few weeks later. It was arranged by Bishop Newell. The plaintiff's recollection is that the principal point of discussion was an enquiry by Bishop Newell as to whether the plaintiff would be prepared to "go in front of an official church enquiry and say this, make these claims". The plaintiff's reaction to this was that he "started to wonder if I had been believed because I was being asked to provide proof, further evidence, further level of testing". He assumed that this was the advice that the Bishop had received from more senior members of the Church. However, he agreed that he would participate in such a process if requested. The plaintiff described his reaction after the meeting as being distressed and frustrated. He was also concerned for his friends, and had been told that AB had not gone forward with the complaint. He was frustrated about this at the time, but now feels guilty because of the later suicide of AB. It is a matter of record that AB took his own life on 11 May 2004.
Sometime later, a third meeting was arranged at the request of the Bishop. The plaintiff recalls that the meeting took place at the Bishop's house at Bishops Court, Fitzroy Place and that he caught a bus to that location. His recollection is that this meeting was in August 1987 but as I will discuss in a moment, there is some other evidence concerning the timing of this meeting. He recalls that the meeting was "a pastoral chat in his library", during which he was asked "And what would you like to see happen to ... Reverend Daniels". The plaintiff responded that he did not know but asked whether Daniels was receiving counselling. Bishop Newell replied in the affirmative, left the room and then ended the conversation. He invited the plaintiff to "feel free to contact me at any time". The plaintiff does not recall any further contact from Bishop Newell after that.
There is a statement in evidence prepared by Bishop Newell dated 6 May 1994. According to this statement, his appointment diary shows meetings with Peter Francis and the plaintiff on 3 June, 5 June and 18 June 1987. The meetings were arranged as a result of contact from Sue Clayton. Ms Clayton explained the general nature of the allegations. Bishop Newell states that he cannot recall when he asked "the boys to put in writing their account of what had happened", but he did subsequently receive two accounts, one each from CD and the plaintiff. The Bishop's statement says that the "series of interviews" enabled him to ascertain the allegations, to see "the priest concerned" and "inform the boys of the action which I had taken or was proposing to take". The statement says that he wrote to the plaintiff and CD on 5 August 1987 offering to meet with them again but that they did not "further follow up that invitation". The Bishop does not explain the purpose of this proposed meeting.
The Bishop's statement confirms that he did have a meeting with Sue Clayton on 19 June 1987 and a meeting with CD on 27 June 1987. In his evidence, Mr CDn confirmed his attendance at this meeting. He was taken to and accompanied at the meeting by Sue Clayton. The Bishop had arranged the location, which was in a café at the Albert Hall in Launceston. Mr CD understood that this location was selected by the Bishop because he was attending another event at the Albert Hall. However, the café was crowded and he found the need to discuss intimate matters in such a public place difficult. He was asked to verbally describe the conduct perpetrated on him and then asked to write a letter, which he agreed to do. The Bishop discussed with him possible courses of action, which included reporting the matter to police, but the Bishop did not present this in a positive way. The Bishop asked him "Would you be willing to stand up in front of a group of people in a public environment and reveal the information?" Mr CD testified that he "didn't want necessarily for Lou to be gone from the Church, but I didn't want him to be put in a position where he was able to interact with young children, young males in that way ever again". He was not offered any form of personal or therapeutic support. He did subsequently prepare a written statement, which he forwarded by mail to the Bishop.
Both the plaintiff and Mr CD spoke in their evidence of their emotional reaction to these meetings. They were both around 16 years of age at the time and had been the subject of serious sexual abuse perpetrated upon them by a person each regarded as a senior member of the clergy. Understandably, each was nervous and intimidated by the experience of speaking to the Bishop, whose status in the church was well known to them. Both also emphasised the popularity of Daniels, within the church community and with parishioners such as their parents. He was described by Mr CDas "a very charismatic individual". The plaintiff had feelings of shame and guilt arising from his inability to prevent the priest from perpetrating these acts and continuing his involvement in CEBS thereafter. Of course, these are very understandable feelings but there is of course no objective reason why the plaintiff should accept any responsibility whatsoever for the conduct of Daniels. The fact that he experienced these feelings is, however, relevant to his subsequent actions and decision-making, as well as the impact of the relevant tortious conduct on him.
I am satisfied that the Bishop, in these meetings, focused almost exclusively on the action, if any, that he should take in relation to Daniels. I find that he did not discuss the option of reporting the matter to the police with the plaintiff and although it seems that he did with CD, it was done in a way to discourage him from taking that course of action. I find also that at no stage did the Bishop offer, or even inquire about, support for the plaintiff. He was aware of Sue Claytons' involvement, but I am satisfied that there was no focus whatsoever on the question of professional or therapeutic support. Quite frankly, the offer to call him again, made at the end of the third meeting, was unlikely to be of any real benefit to the plaintiff.
I am satisfied also that the one consolation which each youth took away with him from these disclosures to the Bishop was that each believed that the Church would take appropriate action and would at least ensure that Daniels was removed from any further opportunity to abuse children. As will be seen, this consolation was misplaced and quickly destroyed, by the actions of Bishop Newell and others within the hierarchy of the Church.

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Before considering the specific response of the Church to the disclosures made by the plaintiff and others to Bishop Newell, and how it dealt with Daniels thereafter, it is relevant, in order to complete the contextual history, to consider what knowledge the Church had of Daniels' propensity to sexually abuse children prior to the commission of his abuse against the plaintiff.
As already observed, Daniels was ordained a priest on 24 February 1975 and had been the Chief Commissioner of CEBS since 1978. The allegation that these offices placed him in "a position of authority, power, care, intimacy and supervision over" children participating in either Church and/or CEBS activities is admitted on the pleadings and obvious in any event. His subsequent conduct suggests that the assaults perpetrated against the plaintiff were not the first time that he had used his position to engage in sexual abuse against children.
It is, in fact, admitted on the pleadings that in 1981, a complaint was made to the Diocese that Daniels had sexually propositioned a 14 year-old-boy. He subsequently admitted to the then Bishop Administrator of the Diocese, Bishop Henry Jerrim, and former Bishop of the Diocese, Bishop Robert Davies, that the allegation was true. It is further admitted that Bishop Davies "verbally rebuked Father Daniels and asked him to receive counselling from a senior priest", and that between 1982 and 1985, Bishop Jerrim informed Bishop Newell about the 1981 incident. There is little evidence about the nature of this incident. In a statement taken in 1999 from Peter Stuart, the then Rector of the Moonah Parish and the Archdeacon of the Clarence Parish, by investigators in respect of a Church Inquiry, Mr Stewart alleges that Bishop Jerrim had been approached by a minister of the Uniting Church on behalf of the parents of the child concerned and advised of "Daniels' inappropriate sexual behaviour with the boy". He also states that the Bishop was never made aware of the identity of the child or his parents or the exact nature of the behaviour. After these discussions, Bishop Jerrim spoke to Daniels and "was probably assured that it was a one off incident". The matter went no further. The information in Mr Stuart's interview is clearly based on hearsay, and should be treated with a degree of caution, but it is also consistent with facts admitted on the pleadings.
A further piece of evidence relevant to this question is the testimony of Janet Coop. Ms Coop was Bishop Newell's secretary between 1990 and the Bishop's retirement in 1998. She first became aware of the allegations against Daniels in 1994. Subsequently, she learned of Daniels' resignation as a priest. She recalls that there was a meeting between Bishops Newell and Stone at that time. She was asked to and did gather up all documents concerning Daniels and placed them in archive boxes. They were gone from the bishop's office the next day, and she was later told that they had been taken to a garage in Moonah. She also noticed soon after that all references to Daniels on her computer had been removed. Finally, when the Royal Commission into Institutional Reponses to Child Sexual Abuse ("the Royal Commission") commenced its investigation, she was asked to assist Bishop Newell to prepare his responses to written questions from the Commission. One of the questions related to whether Bishop Newell had been advised by Bishop Jerrim about allegations of sexual abuse against Daniels in 1981 or 1982. When he read the question, he commented to her "I thought that Bishop Jerrim had dealt with that matter as administrator at the time". However, in his evidence at the Royal Commission, Ms Coop heard Bishop Newell deny that he had been briefed by Bishop Jerrim about these allegations.
I accept Ms Coop's evidence. She was not cross-examined. It is consistent with, but does not advance much further, the admissions on the pleadings already discussed. Further, the specific knowledge of Bishop Newell, although important, is not necessary, to establish the defendant's prior knowledge of Daniels' propensity for sexual abuse. The fact that this knowledge was held by Bishops Jerram and Davies at the relevant time is attributable to the defendant. What this evidence does demonstrate, however, is the early focus by Bishop Newell and others on the protection of the Church from harm arising from Daniels' conduct, rather than a focus on the welfare of the children affected by his actions. I will return to this later in these reasons.
I find in accordance with the admitted facts and accept the truth of the evidence contained in the interview with Mr Stuart. Accordingly, I find that by 1981, responsible members of the defendant were aware of the prior behaviour of Daniels, which involved sexual misconduct against a child. Notwithstanding this knowledge, Daniels was permitted to continue his work as a priest and his involvement with CEBS. The latter gave him unfettered and direct access to young persons and children, including in the unregulated and isolated circumstances arising from the CEBS camps. Further, although I am not able to find that this knowledge predated the bunkbeds assaults on the plaintiff, it clearly did in respect of the balance of the sexual abuse perpetrated by Daniels against him.

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Bishop Newell stated in that document that "Daniels admitted that he had abused the two boys". Because he had "immediately and frankly admitted his conduct, I believed that I could trust him". In subsequent statements, including one made in 2018, he maintained the position that he believed that he could trust Daniels and accept his word that he would not repeat the conduct.
It is not contested, and consistent with admissions on the pleadings, that Daniels was thereafter promoted to positions of pastoral responsibility within the Diocese and administrative responsibility within the wider Anglican Church. Further, despite the assurance which Bishop Newell claimed to receive from him that he would no longer be associated with CEBS, he continued his involvement in this organisation for some years.
Daniels remained in his position of rector of the Deloraine Parish until September 1988. On 2 September 1988, Bishop Newell appointed him as the rector of the parish of Burnie with oversight of the parish of Cooee. In the 1994 statement, Bishop Newell said that he "further questioned" Daniels prior to this appointment. He concluded that there was "no continuing impediment to his appointment to another parish". In 1989, Daniels was promoted to the position of Archdeacon of Burnie. In the pleadings, this role is described as "one of the highest ranking positions in the Diocese", an allegation admitted by the defendant. On 25 October 1991, at a meeting of the General Synod of the Anglican Church of Australia in Sydney, Daniels was elected to that body on the nomination of Bishop Newell. On 24 February 1993, the primate of the Anglican Church in Australia, Archbishop Keith Rayner, confirmed Daniels' acceptance of his invitation of appointment to the role of Chairman of the General Synod Youth Commission.
I cannot determine precisely the duration of Daniels' continued involvement in CEBS, in defiance of the requirement that he resign from that office, and have nothing further to do with the organisation. However, it is clear that it went on for some years. Further, the evidence establishes that this ongoing involvement occurred with the knowledge and apparent approval of Bishop Newell. The minutes of a meeting of the State Council of CEBS Tasmania held on 13 February 1988 record that Daniels presented the Chairman's report and held the role of "Lone Leader". Further, a motion for Daniels to be appointed as a Life Vice President of CEBS in Tasmania was "carried with acclamation". The minutes record that Bishop Newell was present at that meeting.

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In early 1994, the sexual abuse of children by Daniels again came to the attention of church authorities in the Diocese of Tasmania. According to facts admitted on the pleadings, a relative of the plaintiff notified Bishop Stone, who was then the Assistant Bishop of the Diocese, of Daniels' sexual abuse of the plaintiff. Further, in around May 1994, the plaintiff decided to initiate legal action against the Diocese in respect of Daniels' assaults upon him. He consulted a lawyer, who then communicated with both Daniels and the Church in respect of this proposed claim. A series of negotiations followed and ultimately a settlement was reached in September 1994. The settlement was formalised by a Deed of Release. I will return to the circumstances concerning this settlement in greater detail shortly.
These events seem to have prompted Bishops Newell and Stone to further reflect on what action the Diocese should take in respect of Daniels. One option was a formal disciplinary tribunal process, but Bishop Newell decided that there was insufficient evidence to warrant such a process. Instead, he issued Daniels with a letter of solemn admonition. The letter is dated 28 July 1994 and is marked strictly confidential. The letter itself amounts to a rebuke in respect of the conduct perpetrated against the plaintiff. It specifies a number of conditions, and states that compliance with these are "absolutely necessary if you are to continue to be a licenced priest in this Diocese". The conditions sought Daniels' "solemn assurance" that, since Bishop Newell's verbal admonishment of Daniels in 1987, there had been no repetition or further occurrence "of this kind of criminal assault by you and consequent breach of trust". He was required to live his life " beyond reproach", and that in the event that he was offered a position in another Diocese, the bishop of the relevant Diocese would be informed of the allegations of sexual abuse. It was also a condition that he should decline any approach for appointment as a bishop. Of some significance is a condition which provided that in the event of the initiation of civil or criminal action regarding the sexual abuse against the plaintiff or anyone else, "such action would create a public situation such that your resignation as a licensed priest would be immediately required". It is clear from the contents of this letter that it was written by Bishop Newell on the premise that Daniels would continue to operate as a priest in the Diocese, and continue to hold the elevated roles to which he had recently been promoted. In my view, the letter is nothing more than a reiteration of the requirement that Daniels should continue his work in the Diocese and not repeat conduct, which would be illegal and contrary to his priestly obligations in any event. It is a matter of some significance that the only requirement for his resignation as a priest, based on the allegations which had already been made by the plaintiff, was in the event of the initiation of legal action, and then only because such action would "create a public situation". The clear implication was that provided the plaintiff's allegations did not come to the attention of the public in such a way, they would not prevent Daniels continuing in his existing roles.
On 3 August 1994, Daniels wrote to Bishop Newell acknowledging the letter of solemn admonition and accepting its terms. This letter did not contain any admission of the plaintiff's allegations.
It is clear that Daniels was permitted to remain in and act within, his role of Archdeacon of Burnie, and as a member of the General Synod Youth Commission for some time after this exchange of correspondence. The minutes of a meeting of the General Synod in Sydney conducted on 27 and 28 October 1994 indicate that Daniels attended the meeting in the said capacities and indeed spoke to the activities of the Youth Commission. There is no reference in those minutes to either the letter of solemn admonition or the facts and allegations which underlay it. Further, the evidence of Bishop Christopher Jones, who was an assistant priest in the Burnie Parish at that time, confirms that Daniels was very active in his role as parish priest. Bishop Jones was not informed of the allegations against Daniels until events which occurred in November 1994.
On 22 November 1994, Daniels resigned from his role as the rector and Archdeacon of Burnie and from his positions on the General Synod standing committee and as Chairman of the General Synod Youth Commission. The letter of resignation expressed regret for the pain he had caused the Church "as well as the pain and suffering caused to his parents and family". While the letter arguably contains implicit admissions of wrong doing, he did not make these admissions expressly. Further, he does not express any regret or remorse for the harm he inflicted on the plaintiff, and his other victims.
According to a statement prepared by Bishop Newell, the resignation followed a telephone call made to him at 5pm on the preceding day, by the stepmother of a 17 year-old-male, who had gone to the police and "laid charges" against Daniels for "sexual molestation" which had "been going on for three or four years". He then contacted Daniels to inform him of the allegation. Daniels' response, according to Bishop Newell's statement, was "O God, I thought I had fixed that". The letter of resignation arrived the following morning.
Bishop Jones' recollection is that around that time, he was informed by Bishop Stone that Daniels "had sexually abused children and he was leaving". He was not given any further details, but he was told that Bishop Newell would be making an announcement, and that he and the other assistant priest should say nothing until the announcement had been made and new arrangements put in place. Bishop Jones assumed that the announcement would specify the reason for the resignation. However, the announcement from Bishop Newell when it came at the end of November 1994 simply indicated that Daniels "has resigned for his own personal reasons". Bishop Jones' evidence is that he was surprised by the lack of transparency, and assumed that more information would be provided to the congregation over time. However, this did not happen "for years". Bishop Jones and the other curate were posted to other parishes soon after this.
On the third and fourth of March 1995, a meeting of the standing committee of the General Synod took place in Sydney. I infer that this was the first such meeting after Daniels' resignation. The minutes record that both the primate, Dr K Rayner, and Bishop Newell were present. The meeting was informed of Daniels' resignation, and there was discussion concerning the vacancies created by it on the standing committee and the Youth Commission, but there is no reference in the minutes to the reason for the resignation, or indeed any of the allegations which had been made against Daniels over time. However, I am satisfied, and find that at the very least, the primate and, of course, Bishop Newell were well aware of this information. Further, despite the serious and concerning nature of these allegations, there is no reference to any discussion about such issues, or the Church's response, during this meeting. On the contrary, the minutes record that a motion was carried recording the appreciation of the standing committee "of the significant contribution made by the Reverend Lou Daniels to the Australian church, and in particular its General Synod, its standing committee and its Commissions" and conveying the Committee's "appreciation and good wishes" to him.
It seems that Daniels left Tasmania, and moved to the ACT soon after his resignation from the Tasmanian Diocese. The evidence suggests that he involved himself in lay pastoral work within the Anglican Church in that jurisdiction, and applied for, and obtained, a teaching position in the public education system there. In May 1997, Bishop Newell wrote to Bishop Browning, the Bishop of the Diocese of Canberra and Goulburn, and the ACT Department of Education, advising of the allegations which had been made against Daniels by the plaintiff and others, and expressing his concern that Daniels might be employed in any capacity in which he would "come into contact with young males in circumstances in which he may have the opportunity to abuse the trust reposed in him" in relevant capacities. In July 1997, the Catholic Education Office in the ACT, sought information about Daniels because he was also registered as a casual teacher in that system. It is clear from this correspondence that information about the allegations against Daniels had not been provided to these organisations before this.
On 30 October 1997, Bishop Newell publicly announced the establishment of a church inquiry into sexual misconduct by clergy and officers of the Tasmanian Diocese. The inquiry, entitled "Not the Way of Christ" was conducted by a barrister and a psychologist. Its terms of reference were largely concerned with systemic issues. While the inquiry received information about specific cases, including that of Daniels, there was no detailed analysis of same, nor did it make any specific recommendations concerning a response to that case.
There is no doubt that Daniels continued to perpetrate child sexual abuse during the time that he was in Burnie. On 28 May 1999, Slicer J sentenced Daniels to imprisonment for a period of twelve months, with the last three months suspended, for four counts of indecent assault and two counts of unlawful sexual intercourse committed against a 15 year old youth in February and April 1992. On 13 May 2005, his Honour sentenced Daniels to a further term of imprisonment of seven and half years for a series of sexual crimes, including four counts of maintaining a sexual relationship with a young person and several counts of indecent assault and attempted indecent assault, which were perpetrated during a course of conduct which spanned between January 1974 and December 1993. Clearly, some of that period related to Daniels' tenure in the positions to which he was promoted after Bishop Newell had learned of the sexual abuse relating to the plaintiff. Neither case related to the assaults perpetrated against the plaintiff. However, I was informed at trial that Daniels had recently been charged with further offences, including those committed against the plaintiff. These were still pending when I reserved my decision. The records of the Court disclose that he subsequently pleaded guilty to 2 counts of persistent sexual abuse of a young person, one of which was comprised by the assaults committed against the plaintiff. On 12 May 2023, Estcourt J imposed a global sentence of 6 years' imprisonment, with a non-parole period of 4 years.
It is clear from the sentencing comments in each of these cases, that with one minor exception, the crimes were committed against males under 17 years of age, and involved predatory conduct which utilised Daniels' position as a priest to gain and then abuse the trust of these young people.
Daniels was deposed from holy orders on 13 December 2002. This occurred as a result of a tribunal process initiated by Bishop Browning, after Daniels had returned to the ACT upon completion of the first of the prison terms.

[86]

The plaintiff completed Grade 12 at Friends School in 1988. In 1989, he enrolled in a science degree at the University of Tasmania. The plaintiff's evidence is that the sexual abuse perpetrated by Daniels had a significant impact on his school education, and the career options available to him when entering tertiary studies. The extent of this impact, in particular on his earning capacity, is a significant issue in this case, and I will return to it in more detail in due course.
There is no real dispute that the impact of the sexual abuse affected the plaintiff's psychological health, and his academic performance in the University course. The plaintiff's evidence is that he struggled in his first year. He regularly missed classes, did not complete work and developed a significant drinking problem. At the end of the year, he was placed on academic probation because of poor results. Over the following 2 years, 1990 and 1991, with the assistance and support of a friend and his family, the plaintiff improved his academic performance and completed the undergraduate degree. He completed an Honours degree, achieving first class honours, in 1992.
The plaintiff's evidence is that by the end of the Honours year, he was "completely burnt out" and quite ill. He contracted pneumonia, and the symptoms persisted for some time. He had been working long hours and he attributes this work ethic and its consequences to his need to divert himself from the psychological consequences of the sexual abuse.
In 1993 or 1994, the plaintiff commenced a PhD in biochemistry. He describes himself as being "very depressed" as he pursued these studies during 1994. He had ceased involvement with the Anglican Church by then. During that year, in a "severely depressed" state, he undertook a sole hiking trip in order to make "an evaluation of my life" and determine whether it was "worth continuing". At the conclusion of this trip, he made a decision to seek legal advice with respect to Daniels and the crimes which he had perpetrated against him. My impression from his evidence was that he had no particular goal in mind in taking his step, other than to seek advice. As he described in evidence, his first approach to the solicitor was to describe the history, including that which related to what he regarded as "the cover-up" and he asked the lawyer what could be done about it. He had by this stage had no treatment in respect of his psychological or emotional state. He was 23 years of age.
The plaintiff consulted David Smith, who at that time was an associate with the firm Ayliffe and Ayliffe. Mr Smith was the partner of a fellow student of the plaintiff. The plaintiff described him as "a junior solicitor", and both parties in this case proceeded on a common understanding that Mr Smith was, at that time, relatively inexperienced. However, the plaintiff did have an initial conversation with Bill Ayliffe, a principal of the firm. After that discussion, the plaintiff decided to commence what he described as "a civil claim", and that Mr Smith would act for him at "reduced costs, essentially pro bono".
After engaging Mr Smith, the plaintiff was referred to a psychologist, Christine Clifford. The referral was clearly made for medico-legal reasons, but Ms Clifford also provided therapeutic services to the plaintiff. As I have already noted, this was the first professional assistance which the plaintiff had sought or received in respect of his psychological state. In a report to Mr Smith dated 9 May 1994, Ms Clifford noted psychological difficulties that the plaintiff had experienced, including anger towards the church, in particular with respect to the promotion of Daniels after the disclosure of the abuse, as well as his recent problems with respect to his studies and use of alcohol. Ms Clifford expressed the opinion that these problems were the result of the indecent assaults perpetrated by Daniels and that the impact of this abuse was both direct and indirect. In a further letter to Mr Smith dated 17 May 1994, Ms Clifford advised that the plaintiff had attended at her rooms on 13 May 1994 and was "clearly significantly depressed". His main concern was what he perceived to be the "stalling" of the church regarding a scheduled meeting. She felt his current level of depression was severe and that "he can fall into a deep depressive state very quickly". She referred him to a psychiatrist, Dr Laurence McCafferty.
The purpose of this referral was for psychiatric treatment, but Dr McCafferty also provided Mr Smith with a medico-legal report dated 7 June 1994. Dr McCafferty expressed the opinion that although problems in the plaintiff's family of origin during childhood "likely had a significant impact on his psychological development", the sexual abuse was having "a major detrimental effect on his mental health" and continued to do so. Dr McCafferty considered the "vulnerabilities in his personality because of his adverse family environment would likely make the effects of sexual abuse during adolescence more traumatic".
The first contact between the plaintiff's lawyers and the Church occurred on 14 April 1994, when Mr Smith wrote to the Church, marking the letter to the attention of Bishop Newell. The letter referred to "a number of indecent sexual assaults perpetrated...by the Reverend Louis Daniels". It specified the first having occurred in December 1981 and advised that the assaults continued until the plaintiff was approximately 16 years of age. It noted that particulars of the assaults had been provided during the meetings with Bishop Newell in 1987. It referred to what the plaintiff regarded as a cover-up by the Church and "a distinct lack of concern for the victims". The letter advised that the plaintiff wished "to enter into negotiations with a view to a mutually acceptable settlement." There was a request for an admission of liability by the Church in respect of Daniels' actions and an implied threat of legal action if the admission was not forthcoming. The letter also provided an "indication" of the plaintiff's demands, which were listed as the dismissal of Daniels and monetary compensation for pain and suffering, and to meet the cost of counselling. The plaintiff confirmed in evidence that the letter reflected his aspirations in respect of the proposed legal proceedings.
I observe at this point in the narrative that the proposed legal action was directed towards the Anglican Church, and not towards Daniels directly. The lawyer did not write to Daniels at all. It is clear from the plaintiff's evidence that he was well aware of this. I am satisfied that the plaintiff's primary interest at this point was to ensure that the Church dismissed Daniels. This was consistent with the fundamental reason for the plaintiff's original complaint to Bishop Newell in 1987, and the plaintiff's ongoing disappointment in the Church's treatment of Daniels' since then.
Although Mr Smith's letter had requested a response within seven days, Bishop Stone requested further time. He then engaged Andrew Abbott who was, at that time, a partner in the firm of Dobson Mitchell Allport, to act on behalf of, and advise, the Church. Mr Abbott gave evidence at the trial and confirmed this engagement.
Some of the correspondence between Mr Smith and Mr Abbott, and Mr Abbott and Bishop Stone, has been admitted in evidence. It seems likely that what is in evidence does not constitute all of the written correspondence between those persons. Further, I have no doubt that their communication also included verbal discussions. In any event, a number of matters can be inferred and concluded from the evidence placed before me. It seems clear that as soon as Mr Abbott was engaged, he discussed the matter on a "without prejudice" basis with Mr Smith more than once. It is clear also that the focus of Mr Smith was to bring the defendant to an early conference, with a view to achieving a negotiated settlement. I infer that the defendant's purpose in seeking advice from Mr Abbott included an assessment of its own liability for the actions of Daniels, as well as whether or not it could obtain indemnity for any such liability under its public liability insurance policy. On 5 May 1994, Mr Abbott wrote a lengthy letter of advice to Bishop Stone. The letter was headed "Public Liability - QBE". Mr Abbott expressed the opinion that the acts, which were described as having occurred during January 1986 and January 1987, "comprised trespass to the person of the victim, and accordingly the victim would have a cause of action against the clergyman for damages including aggravated and exemplary damages". Mr Abbott noted that there was "at least a substantial question as to whether or not the church is legally responsible for the acts of the clergyman". Mr Abbott deferred further advice on this question pending a determination of whether the church decided to "stand behind the clergyman" or not. He noted that in the event it did not, Daniels would require separate representation.
It is apparent from the letter of advice, and confirmed by Mr Abbott in his evidence, that the only basis of liability on the part of the defendant considered by him was its vicarious liability as the employer of Daniels at the time he committed the relevant assaults. He gave no consideration to and did not raise, the prospect of direct liability based on negligence.
In addition to the insurance question, Mr Abbott's letter provided the following advice:

[88]

On 6 May 1994, Bishop Stone provided Mr Abbott with the confidential statement of Bishop Newell, of the same date, that I have already discussed in some detail. In a further letter of advice to Bishop Stone dated 9 May 1994, Mr Abbott acknowledged consideration of this statement and advised that it was more probable than not that the insurer would successfully deny liability. He also advised that "technically speaking, admissions have been made" and that those admissions would assist the plaintiff on trial. In his testimony before me, Mr Abbott was cross-examined in some detail by senior counsel for the plaintiff, Ms Whalan SC, on the question of whether he had been instructed, or had concluded, that either Daniels and/or the Church had made admissions concerning the perpetration of the sexual abuse and consequent liability. Mr Abbott's evidence about the relevant circumstances was heavily qualified by his claim to have no independent recollection of the matter, although he did concede that a review of relevant documents shortly prior to giving evidence had refreshed his memory to a limited extent. He was not prepared to concede that his instructions included direct admissions of fact by either Daniels or the Church. At its highest, his comment to his client about admissions involved an interpretation of Bishop Newell's statement that Daniels "did not explicitly admit responsibility and guilt" but had "acted as one who did not want to deny the allegations". Mr Abbott also conceded that it may well have been that he was instructed to assume that the allegations were true for the purpose of his advice and representation of the Church. However, he did not have an independent recollection of this.
The letter goes on to discuss the decision required from the Church as to whether it would "stand behind the clergyman and not seek to recover from him any amount in respect of the damages" that will be paid to the plaintiff. It is clear from subsequent events that a decision was made by the Church not to support Daniels or pay for those damages, and Daniels did engage separate representation, from Mrs Audrey Mills, a partner of the firm of Piggott Wood & Baker.
Mr Abbott wrote a further letter of advice to Bishop Stone on 13 May 1994. By this time, he was in possession of the report from Dr Clifford. The letter describes the plaintiff as "suffering from psychological problems of a moderately serious nature, but that his prognosis is relatively good". There had obviously been an agreement reached with Mr Smith to provide particulars of damages. The letter confirms that Daniels was in the process of obtaining separate legal advice and that it was likely "that Mr Daniels will be prepared to join in the settlement of the matter".
In a further letter of 25 May 1994, Mr Abbott reported to Bishop Stone that he had conferred with Daniels' solicitors and had "been informed that Mr Daniels accepts that the payment of the amount required to settle the matter will be his responsibility rather than the responsibility of the Church". He then confirms that he has communicated two matters to the plaintiff's solicitors, both of which were clearly designed, and accepted as such by Mr Abbott in his evidence, to persuade the plaintiff to accept a lesser sum than he might otherwise. The first was that if the Church was to contribute financially to any settlement, then the payment "would be required to be authorised by Diocesan Council and in that event the inevitable wide publicity of the matter would result in Daniels dismissal". Secondly, he said this:

[92]

He advised that settlement of the matter "within the range $15,000 - $20,000 would be satisfactory". He sought and presumably obtained instructions to inform Daniels' solicitors of this opinion and "to generally liaise with them with a view to settling the matter within that range on the terms previously discussed between us, that is, on the basis of a release incorporating an appropriate confidentiality clause".
This was the last correspondence in evidence concerning the negotiations. However, I infer, and indeed Mr Abbott confirmed in his evidence, that there were ongoing discussions between the three lawyers. A letter from Mr Abbott to Bishop Stone, dated 6 July 1994, confirms that the matter "has settled for the sum of $34,000 inclusive of Mr Steen's costs, on the basis that settlement be confidential and be put into effect by release".
Mr Abbott enclosed a draft deed with that letter, which had been prepared by him for approval by Bishop Stone. Between that time and 2 September 1994, the deed, in its final form, was signed by the plaintiff, Bishop Newell on behalf of the Church and associated organisations, and by Daniels. The settlement sum of $34,000 was paid to Ayliffe and Ayliffe on 1 September 1994. After deduction for costs, the plaintiff received the net sum of $29,690.10.
It is worth recalling that the letter of solemn admonition written by Bishop Newell is dated 28 July 1994, three weeks after confirmation of the settlement. This fact supports the inference that the defendant's intention at the time of the settlement was not to dismiss Daniels as a result of the sexual abuse he had perpetrated against the plaintiff and others, at least while the allegations against Daniels remained out of the public arena.
The deed of release names the parties to it as the plaintiff, Daniels and the various organisations which together comprise "the Anglican Church". The body of the deed is divided into two parts entitled "Recitals" and "Operative part". The recitals include the following:
- The plaintiff's allegation that Daniels in his capacity as a priest of the Anglican Church unlawfully sexually assaulted the plaintiff in or about January 1986 and January 1987 at Montgomery Park in Tasmania. These allegations are called "the sexual assault allegations" for the purposes of the deed. There is no reference to any other assault.
- It records that both Daniels "has denied and continues to deny the sexual assault allegations and liability to the plaintiff for the personal injuries". "The personal injuries" is a reference to the plaintiff's allegation that he "suffered and continues to suffer personal injury, loss and damage" by reason of the "sexual assault allegations".
- It records that "the Anglican Church has denied and continues to deny liability to the plaintiff for the personal injuries".

[94]

I will return to the meaning and the effect of the deed shortly.
The plaintiff made it clear in his evidence that he believed at an early time in the negotiations that the Church was not prepared to accept any liability or responsibility in respect of Daniels' abuse of him, or the damage caused by it. He recalls that, at an early point in the negotiations, he was told by Mr Smith that the Church had "cut (Daniels) loose" and that he was to be separately represented. The plaintiff was aware that the negotiations and correspondence thereafter proceeded between his lawyer and Daniels' lawyer. He was also aware that the Church would not be contributing to the settlement and that Daniels would be solely responsible for the payment. His lawyer had told him that if the Church were to join in the payment then this would result in his allegations and the settlement becoming public knowledge. His evidence was that he was "very intimidated by that prospect". He was also told that if the Church made a contribution then in order to obtain the approval of Diocesan Council to the payment, he would need to be examined and assessed by a psychiatrist engaged by the Church, Dr Ian Sale. His evidence was that he was intimidated by this prospect. Although a potential examination by Dr Sale is not mentioned in the correspondence, I have no doubt that this was passed on to Mr Smith by Mr Abbott and communicated to the plaintiff. His recollection of a psychiatrist who at the time, was active in medico-legal work, including for defendants, can only be consistent with Dr Sale's name having been mentioned to the plaintiff in the circumstances described by him.
The plaintiff's evidence is that Mr Smith recommended the settlement, including dropping the demand that Daniels be removed from church activities. The plaintiff explained that, by this time, he was exhausted by the psychological stress of the process and accepted the advice. He was also aware that Daniels' ability to meet any higher sum was extremely limited. When asked if he would have had a different view about the amount that should be paid under the settlement if the defendant had agreed to contribute to the payment, he said "My actual expectation would have been quite different. It would have been much higher".
The plaintiff was aware that he would need to sign a deed of release in order to formalise the settlement, and that it would contain a confidentiality agreement. I infer from his evidence that in general terms, he understood that the release would mean that he would give up any further claim against either Daniels or the Church and would need to keep the terms of the settlement and the facts to which it related, confidential. However, shortly before the deed was due to be signed, Mr Smith left his employment with Ayliffe and Ayliffe to take up a position with Piggott, Wood & Baker. He asked the plaintiff to sign a document waiving the obvious conflict. The plaintiff makes no real complaint about this in this trial, but the practical effect of these circumstances is that by the time the plaintiff came to execute the deed, Mr Smith had left the firm. As a result, he signed the document in the presence of a secretary and receptionist. He did not see a solicitor and the document itself was not explained to him. He does not recall reading it prior to signing it and believes that the first time he read it, and became aware of some of its critical contents, was many years later when giving evidence to the Royal Commission. These contents include the recital of Daniels' denial of liability and the reference to the term "absolute bar". He was aware that Bishop Newell was to sign the document but could not really understand why that was so. He understood the confidentiality aspect of the agreement and his evidence was that he intended to and indeed has adhered to it.
The plaintiff also said in evidence that he was not aware at the time of signing the deed of the following matters:
- That Bishops Jerrim and Davies had knowledge of Daniels' propensity for sexual abuse of children in the early 1980's.
- That Bishop Newell had consulted Archbishop Rayner in 1994.
- That Bishop Newell had purported to receive an admission in 1994 from Daniels concerning his assaults on the plaintiff and Mr CD.
The plaintiff's evidence was that had he been aware of any of these matters, that knowledge would have affected his decision to sign the deed. He said:

[103]

Before considering whether the deed should be set aside, it is necessary to dispose of an issue which is left open by the pleadings. The issue is whether the deed, even if valid and effective, does as matter of construction, constitute a bar to this action. In its defence, the defendant relies on the deed as operating "as an absolute bar to prosecution by the plaintiff of any common law action or any other proceedings arising from the sexual abuse of the plaintiff alleged in the statement of claim". In its amended reply, the plaintiff disputes this construction of the deed. The plaintiff relies on the meaning attributed to "the sexual assault allegations" in the recital which, it is argued, confines the operation of the deed to unlawful sexual assaults perpetrated upon the plaintiff by Daniels "in or about January 1986 and January 1987 at Montgomery Park in Tasmania". The only assaults pleaded in the statement of claim, which fall into that timeframe, are the river assaults. However, these assaults are not alleged to have occurred at Montgomery Park, but rather at a location near Meander Falls.
Ms Whalan did not make any submissions in support of the plaintiff's pleaded position on this issue. However, nor did she expressly abandon the point. Accordingly, in my view, the issue remains open on the pleadings and must be resolved.
There is no question that the releases contained in the operative part of the deed are drafted in extremely wide terms. Clause 2.1 provides for a specific release in respect of "any or all claims, demands, disputes, suits or proceedings in relation or arising out of the sexual assault allegations or the personal injuries". The pleaded argument that confines this release to "the sexual assault allegations" as defined is clearly on firm ground. However, cl 2.1 goes on to provide for the further release of Daniels and the Anglican Church in respect of any liability "whatsoever howsoever arising". Clause 2.2 goes on to provide that the deed of release "operates as an absolute bar to prosecution by the plaintiff of any common law action or any other proceedings and that the same maybe pleaded as such". It is difficult to imagine how the release could have been drafted in wider terms.
The construction point which arises is whether and, if so, the extent to which, the words of general application are to be read down and confined to specific issues. On the plaintiff's pleaded case, the general words are to be confined to the facts described in cl 1.1 of the recitals. The defendant says that this cannot be so, because the wording of cl 2.1 demonstrates clearly that the common intention of the parties was to extend the release beyond liability for the specific sexual assault allegations described in cl 1.1. It is argued that while it may not extend to liability completely unrelated to sexual assault or Daniels' conduct, it is clearly intended to capture liability for any conduct of this nature perpetrated by Daniels against the plaintiff, whether specifically defined in the recitals or not.
The leading case on this question is the High Court decision in Grant v John Grant & Sons Pty Ltd [1954] 91 CLR 112, 1954 HCA 23. There is a significant and settled line of authority arising from the application of this case by intermediate courts of appeal throughout Australia. The principle confirmed by Grant is that general words in a deed of release can be narrowed by two principles of contractual interpretation. These principles were explained recently in a joint judgment of the Court of Appeal in Victoria in RW and ME Smith Pty Ltd v Boral Resources (Vic) Pty Ltd [2023] VSCA 182:

[111]

In Grant, the High Court applied the first principle of construction in the circumstances of the case. The general words used in the operative part of the deed were read down and confined to the disputes specified in the recitals. That decision turned on the specific circumstances of the case. However, in this case, there are two aspects of the terms of the deed, which in my view, make it appropriate to apply the second principal of construction, that is consideration of the disputes which were the subject of negotiations, and in the mind of the parties, when they reached the settlement.
Firstly, the recital is in fact a confused description of Daniels' abuse of the plaintiff which conflates aspects of several incidents. The confusion seems to arise from a general reference in the original letter from Ayliffe and Ayliffe to Bishop Stone on 14 April 1994 which simply indicated that the particulars of the conduct were those made during the meetings with Bishop Newell in 1987. The plaintiff's written statement to Bishop Newell, which would without doubt have been used as the source of the factual basis of the claim by the lawyers on both sides, referred to two incidents, one in January 1986 and the second in January 1987, both taking place at Montgomery Park. The first, however, clearly described the bunk bed assaults. In evidence, the plaintiff acknowledged that the date was wrong. He was not challenged about the contents of this document in cross-examination, and the sexual assaults are admitted in any event. The confusion arising from this statement seems to have been incorporated into Mr Abbott's understanding of the allegations. In the letter of advice written by him on 5 May 1994 concerning the insurance question, he summarised the allegations as "that in or about January 1986 and in or about January 1987, a member of the clergy has committed two deliberate unlawful acts in relation to a person", who was clearly the plaintiff. It seems that this understanding of the plaintiff's case carried through to the impugned recital, which, of course, was drafted by Mr Abbott. It was unlikely to have been picked up and corrected by Mr Smith, given his change of employment at that time, or by the plaintiff, who did not read the document before he signed it. However, there is no question that the negotiations which led to the settlement contemplated all of the allegations made by the plaintiff against Daniels. The initial letter from Mr Smith made it clear that there were "a number of indecent sexual assaults perpetrated" by Daniels, the first which occurred "in or about December 1981", when the plaintiff was 11 and that they continued until he was 16.
The second matter arising from the wording of the deed concerns the two limbs of release contained in the operative part of the deed. As I have already noted, it seems clear that the intention of the parties was to ensure that the settlement and release related to all of Daniels' wrongdoing against the plaintiff, irrespective of whether it is referred to in the recitals.
Accordingly, I am satisfied that the second principle of construction referred to in Grant v John Grant Sons Pty Ltd is applicable to this case. I am satisfied that the deed should be construed as releasing both Daniels and the Church from any liability arising from all of the sexual abuse perpetrated by Daniels against the plaintiff, and that the general words of the release should be limited in this way only. This clearly includes the admitted conduct alleged in the statement of claim. It follows that unless the deed is set aside or rescinded, it will operate as an absolute bar to the plaintiff's claim.

[128]

This provision was inserted into the Act in 2019, with effect from 1 May 2020. It is part of legislative reform arising from recommendations of the Royal Commission. As I understand it, this is the first case to deal with an application made pursuant to the provision.
The first question which arises is that of procedure. Subsection (2) provides for the relevant order to be made "on application". Its terms suggest that this should occur before the action is "brought". The section provides a statutory remedy, which is not otherwise available through action. In those circumstances, the proceedings seeking an order under the section should be commenced by originating application under r 89 of the Supreme Court Rules 2000. However, the proceedings in this case were not commenced in that way. The issue of setting aside the settlement under s 5C was first raised in the plaintiff's reply to the defence, which asserted that the deed is an absolute bar to the prosecution of the action.
Despite this, neither party has raised any issue, whether it be procedural or jurisdictional, concerning the way in which the application under s 5C has come before the Court. The defendant did prior to the trial apply for an order pursuant to r 559 for the separate determination of the issue of whether the deed should be set aside, whether it be under the general law or s 5C, from the issue of damages. At that time, the action was, on the plaintiff's election, to proceed as a jury trial. On 23 June 2022, I handed down a decision which rejected the defendant's application. A critical consideration in that determination was my judgment that much of the evidence informing the question of damages, including whether an award should be made for exemplary damages, would also inform issues arising in respect of the setting aside of the settlement under s 5C, or rescission of the deed under the general law. In relation to s 5C, this arose in part from the non-exhaustive but mandatory considerations listed in s 5C(3). However, the defendant's argument did not raise any point based on the irregularity of the proceedings.
Rule 92 of the Supreme Court Rules 2000 provides that proceedings which contain multiple claims can be commenced by writ if any part of the claim may be commenced in that way. Further, r 15 provides that a proceeding is "not void solely on the ground that the proceeding was commenced by the wrong process." A question may arise as to whether these provisions relate only to relief available from the requirements of the Rules, as opposed to a procedure required by statute. However, there are a number of cases which identify and endorse the trend of Australian courts to refuse to attribute jurisdictional significance to procedural requirements, even where those requirements are imposed by the statute providing for such relief. Jadwan Pty Ltd v Middletons [2007] TASSC 74 at [11]- [15] and West Tamar Council v Leonard [2012] TASSC 68 at [48]. Ultimately, however, this will depend on construction of the statute. Project Blue Sky Incorporated & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364. I see nothing in this legislation which would suggest that jurisdiction to determine this question should be denied when the issue has come before the Court in the circumstances of this case, and where no point has been taken by the defendant. On the contrary, the remedial and beneficial nature of this legislation strongly supports the view that the reference to an order made "on application" simply provides a convenient and cost effective process to determine the question prior to commencement of a full action, but does not impose a jurisdictional limitation. The decision by the parties to deal with the issue under s 5C as part of the trial through the pleadings, without taking a procedural or jurisdictional point, is a sensible one, particularly having regard to the commonality of evidence across all issues. I intend to proceed on that basis.
Further, I think that it is appropriate to deal with the s 5C question before proceeding to determine the claim for rescission under the general law. Notwithstanding the view I have taken concerning the process by which this question has come before me, the fact remains that the provisions of s 5C confer a discrete statutory remedy, which if granted will remove an absolute bar to these proceedings. The terms of subs (2) suggest that the question, if not determined as a discrete preliminary issue, should at least be considered at the outset of the case. Finally, while much of the evidence and subsidiary issues affecting the determination of the relief under s 5C will also inform the claim for rescission of the deed under the common law, the ultimate issues are different, and a different outcome is entirely possible. Accordingly, I will deal with these issues discretely, and in the indicated order.
The next question which arises concerning the application of the section to this case concerns the meaning of the term "a previously settled relevant right of action". It is clear from the terms of subs (2) that relief under the provision can only be granted in respect of an agreement effecting the settlement of such a right of action. In this case, there is no difficulty with the settlement effected by the deed of release relating to a relevant right of action. That term is defined to mean a right of action in respect of child abuse. "Child abuse" is defined to mean sexual abuse of a child. By s 2(8) a right of action "shall include references to a cause of action". Clearly, the settlement formalised by the deed related to all causes of action arising from Daniels' sexual abuse of the plaintiff.
As already discussed, the plaintiff's claim alleges two discrete causes of action against the defendant, vicarious liability for the intentional tort of trespass to the person and liability for its own negligence in failing to discharge its duty of care to the plaintiff. There is no question, and it is not controversial in any event, that each allegation constitutes a separate cause of action. See Horne v Wilson [1998] TASSC 17. In my view, the effect of s 2(8) of the Limitation Act, is that each cause of action is in fact a separate right of action. Although Mr Abbott conceded in evidence that he had regarded the Church's vicarious liability for the acts of Daniels as the only relevant and sustainable cause of action, and had not considered the possibility of negligence, it is clearly the defendant's case consistent with the wide ambit of the release, that the settlement covered both admitted causes of action in this proceeding. The defendant's position is that the deed achieved an absolute bar to the prosecution against either Daniels or the nominated parties constituting the defendant arising from Daniels' sexual abuse of the plaintiff. This covers not only its vicarious liability for Daniels' actions but also its own direct liability, which as now defined, includes its negligence. Hence, on 2 September 1994, the parties settled two discrete relevant rights of action.
The next question which arises with respect to the application of the section is concerned with the timing of the settlement. A "previously settled relevant right of action" is defined to mean "a relevant right of action that was settled before the day on which s 5B commenced but after a limitation period applying before that day to the right of action had expired".
This definition contains three separate temporal elements. Firstly, it is necessary to determine when the relevant right of action "was settled". In this case, there is no difficulty in making that determination. The settlement relied upon by the defendant was effected by the agreement formalised by the deed of release. It is an admitted fact on the pleadings that the deed was entered into by the parties on 2 September 1994. The evidence about this is uncontroversial in any event.
Secondly, the definition requires that the relevant right of action was settled "before the day on which s 5B commenced". Section 5B is a provision which abolished the time limit for commencing an action for damages for personal injury arising from or related to "the sexual abuse or serious physical abuse, of the person when the person was a minor". It is a matter of legislative history that the section commenced on 1 July 2018. The section was introduced as a direct response to a recommendation made by the Royal Commission. The recommendation was underpinned by the Royal Commission's conclusion that persons who had suffered sexual and serious physical abuse as a child were often, because of the effects of the abuse, unable to consider or undertake legal proceedings within the normal time limits prescribed under limitation legislation for the causes of action that arose from such abuse. The practical result was that a significant number of victims of child sexual abuse were prevented from taking such action by the existence of limitation periods. Section 5B effectively removed this barrier to legal relief.
The third temporal requirement is that the relevant right of action is settled "after a limitation period applying before that day to the right of action had expired". Ms Whalan submitted that a question of construction arises concerning the proper definition of "that day", in particular whether it relates to the day on which s 5B commenced or the date of settlement. It was submitted that this created ambiguity. With respect, I do not think that there is any real difficulty about the meaning of that term. The required temporal link is between the date of settlement and the expiry of the defined limitation period. In the second reading speech, it was made clear by the Attorney-General that although s 5C did not respond to a direct recommendation of the Royal Commission, its introduction was to complement "work that has been undertaken in response to other recommendations, particularly relating to limitation reform". This was clearly a reference to the removal of all relevant limitation periods effected by s 5B. It is worth noting that s 5C was introduced and commenced well after s 5B, on 1 May 2020.
When viewed in the context of that legislative history, it can be seen that the reference to "a limitation period applying before that day to the right of action" defines the limitation period as one which applied before the removal of such limitation periods upon the commencement of s 5B, and which also applied to the settled right of action. Accordingly, the real question posed by the definition is whether a limitation period, which applied prior to the commencement of s 5B, and which applied at any time to the right of action which was the subject of the settlement, had expired before the date of the settlement.
The next question which arises in this case, therefore, is the identification of the limitation period, if any, applicable to each right of action which was settled on 2 September 1994. That is, the intentional torts and negligence.
In respect of the defendant's vicarious liability for the intentional torts, I will proceed on the basis that on each occasion on which Daniels perpetrated sexual abuse against the plaintiff, a right of action accrued against the defendant for the tort of trespass. As already noted, causation of damage is not necessary to establish the tort. Damage is necessary to establish a cause of action in negligence, but having regard to the psychological and psychiatric evidence, and the nature of the assaults, it is, in my view, more probable than not that each such act caused immediate psychological injury. Accordingly, I am satisfied that a cause of action in negligence also accrued immediately upon the commission of each assault.
It is common ground that a limitation period applied to each right of action. These periods were imposed by the Limitation Act, as it was formulated at the time of accrual of each right of action. The relevant periods, subject to adjustment for disability, were:
- In respect of the action in trespass, six years from the date of accrual of each right of action. This period arose by virtue of s 4 of the Limitation Act.

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In my view, the effect of the application of this provision to the facts of this case is as follows:
- In respect of the rights of action arising in trespass, the limitation period for each is extended by the provisions of s 26(1) for a period of six years from the date on which the plaintiff ceased to be under a disability, his 18th birthday. He turned 18 on 14 January 1989 and, accordingly, the limitation period applicable to each right of action arising in trespass expired on 14 January 1995. Section 26(6) is not applicable to this cause of action because it is not one "referred to in section 5". Accordingly, in respect of the actions in trespass, they were settled before and not after the expiry of the applicable limitation period. Hence, the rights of action in trespass do not fall within the definition of a "previously settled relevant right of action".
- In respect of the actions in negligence, the limitation period applicable under the law at that time was three years and the effect of s 26(1) was to extend this period for three years after the plaintiff ceased to be under a disability, 14 January 1992. The extension of three years, rather than six years, arises from the qualification in s 26 contained in the words "or in the case of any action for which a less number of years is prescribed by this Act as the period of limitation then such less number of years". Section 5 prescribed a limitation period of three years for a personal injuries action claiming damages for negligence. There was discussion in submissions concerning the applicability of s 26(6) but the effect of that section, even if it applied, would be to make the expiration of the limitation periods applicable to the negligence actions earlier than 14 January 1992. In either event, the settlement of each such right of action occurred after the expiration of the relevant limitation period. Each cause of action in negligence therefore qualifies as a "previously settled relevant right of action".
The next question which arises is the significance of the qualification of the cause of action in negligence as a "previously settled relevant right of action", but not the action founded on vicarious liability for the intentional torts. This issue involves the construction of s 5C(2). If the Court sets aside the agreement affecting the settlement, then that subsection would seem to permit an action to be brought only "on a previously settled relevant right of action". In other words, it is arguable that if the settlement is set aside, that it is set aside only for the purpose of permitting the actions in negligence.
Ms Whalan submitted that subs (2) constitutes a gateway provision. In other words, if the settlement is set aside then, it is set aside for all purposes. In particular, the release from liability which was an integral part of the agreement would be dissolved. The terms of subs (2) would authorise the actions in negligence, but not for those based on the intentional tort. The only remaining impediment with respect to those actions would be the limitation period arising under s 4. However, s 5B, which is applicable to these proceedings, abolishes this limitation period. Hence, the setting aside of the deed would have the effect that both actions are able to proceed.
I accept the submission that the mechanism described in subs (2) constitutes a gateway provision. There are clearly two aspects to the operation of the gateway. Firstly, there must be a previously settled relevant right of action which is included as part of the agreement giving effect to the settlement. This clearly links the right of action to a limitation period which has expired prior to the settlement. The second aspect of the gateway is the order setting aside the agreement effecting the settlement. The wording of that provision is critical to its construction. The section provides for the setting aside of not just the settlement, but the agreement which effects that settlement. The mandatory, but not exhaustive, list of considerations contained in subs (3) suggests that it is the whole agreement which is to be set aside. There is no justification in my view for a construction which requires a differential or piecemeal approach to setting aside the agreement, the agreement is either set aside or it is not. It would be impossible and impractical for the Court to be expected to perform an exercise in severance of the agreement. In particular, the settlement sum is paid to achieve a release of all liability, including liability arising from a right of action which does not qualify under the applicable definition. Further, if the intention of the provision was to permit an action on a previously settled relevant right of action only, to the exclusion of any other right of action not falling within the definition, it would have been a simple matter to provide in subs (2) that the action may be brought notwithstanding the existence of the settlement, if the Court considered it to be in the interests of justice to do so. This would not require the setting aside of an agreement, but simply authorise a particular action notwithstanding the agreement. Further, and in any event, it seems to me that the provisions of subs (4) support the position that the purpose of the provision is to permit the setting aside of the agreement without restriction to a particular cause of action. Subsection (4) provides that if an agreement effecting a settlement is set aside, then "so much of the agreement...is...void to the extent to which it relates to the child abuse to which the cause of action relates". In this case, that would, in my view, render the whole of the agreement void, because it relates entirely to the child abuse to which the negligence action relates. The focus is on the child abuse, and this would render the release from liability void for all purposes.

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In my view, the approach encapsulated in these comments is appropriate in respect of the "interest of justice" test. However, I am also of the view that the latter test may indeed be of wider ambit than the "just and reasonable" test, particularly having regard to the observation in Landsman that interests of justice can include larger questions of legal principle and questions of the public interest and policy considerations.
Of course, the Act does not leave the court without some guidance. Section 5C (3) provides that "in determining whether it is in the interests of justice to set aside an agreement effecting a settlement", the Court is to have regard to the listed matters. These considerations are mandatory, but non-exhaustive. Whilst their consideration is mandatory, their application is within the context of the wide and unfettered judicial evaluation described above.
I will now turn to these considerations. The first is "the amount of the agreement". In my view, that factor is to be considered in the context of awards of damages for relevant conduct applicable at the time of the agreement. However, it is also relevant to compare the amount agreed in the settlement with that which would be awarded in respect of a successful action at the present time. The latter is consistent with a legislative policy which recognises that settlements reached many years ago were often influenced by a poorly developed understanding of the impact and effects of childhood sexual abuse, which is different to contemporary understanding. It is widely accepted that there is now a better and more informed understanding of such impact. Clearly, that improved understanding is likely to be reflected in increased awards of damages in respect of such conduct.
A related point is that the assessment of whether it is in the interests of justice to set aside the settlement must take into account the facts as they are at the time of the assessment, which is the present. Hence, when considering the amount of the settlement, it is appropriate to do so within the context of what has actually happened in the plaintiff's life, and in particular, the actual history of the development and impact of the harm caused by the sexual abuse. I am yet to assess the question of damages, but as will be seen, the appropriate award, particularly having regard to the demonstrated impact of the sexual abuse on the plaintiff's life since settlement, is substantially in excess of the amount agreed in the settlement. A factor affecting this disparity which is immediately obvious is the underestimation by all concerned, including the plaintiff and his lawyer, of the seriousness and long term nature of the impact of the abuse. On the plaintiff's part, this is apparent from the discussion in his lawyer's letter to Piggott Wood and Baker dated 16 June 1994, in which the calculation of the claim of $20,000 for future economic loss was based on an assertion that the impact of the abuse was comprised of a six to twelve month delay in the completion of the plaintiff's PhD.
A consideration of the amount of the agreement, within the context of the circumstances and standards applicable at the time, necessarily involves related consideration of the other factors set out in subs (3), in particular, the relative strengths of the bargaining positions of each party and conduct by the defendant that relates to the cause of action, which occurred before the settlement was made and the Court considers to have been oppressive.
In this case, there is no question that the plaintiff's position in respect of the negotiations was made weaker by aspects of his personal circumstances. His age and poor psychological health clearly fall into this category. However, there are also aspects which obviate to some extent any potential disparity in bargaining position. He did, as part of the settlement process, eventually seek and receive psychological assistance. He was legally represented, albeit by a solicitor of limited experience. It was the plaintiff who commenced engagement with the defendant and indicated from the outset that he wanted to achieve a settlement by negotiation. The defendant responded to this positively and in many respects, the negotiations proceeded in a normal and reasonable manner. As far as the amount of the settlement is concerned, the plaintiff's opening offer was $55,000 plus costs. The defendant sought legal advice about quantum. Mr Abbott assessed damages at $27526 and advised that a settlement within the range of $15,000 to $20,000 "would be satisfactory". The ultimate settlement was $34,000, inclusive of costs. In those circumstances, I take the view that, judged solely within the context of the negotiations, the amount of the agreement was a reasonable sum. However, this conclusion is affected by and subject to other considerations, which I will now discuss.
Firstly, there are some aspects of the conduct and approach of the defendant in respect of the negotiations and the resulting agreement which I consider to be oppressive or, at the very least, relevant to the question of whether the agreement should be set aside. The first is the refusal of the defendant from the outset of the negotiations to accept any responsibility for Daniels' conduct and the consequences of that conduct to the plaintiff, apart from brokering a settlement limited to the payment of damages by Daniels personally to the plaintiff. The defendant did not contribute at all to the payment of the settlement sum. A related issue is that in exchange for that limited act, and despite the matters to which I will refer shortly, the Church and the associated entities and individuals received the benefit of the comprehensive release from liability. Further, the defendant did not, at any time prior to the settlement, take any action to assist the plaintiff to deal with and recover from Daniels' conduct, for example by an offer to pay for psychological counselling. On the contrary, the recitals in the deed asserted a complete denial of liability on the part of both Daniels and the Church. This was despite Bishop Newell's express instructions contained in his confidential statement of 5 May 1994 as to Daniels' response when confronted with the allegations in 1987, that:

[146]

Further, and most importantly, the Church's avoidance of responsibility was in the context of its knowledge of Daniels' misconduct, prior to the sexual abuse, or at least the majority of it, which he perpetrated upon the plaintiff. In addition to Bishops Jerrim and Davies, it is clear also that by 1994 when the settlement was negotiated and completed, those involved on behalf of the Church in the settlement were well aware of this information. This includes Bishop Newell. However, the plaintiff was not aware of this information when he signed the deed. In evidence, he said that he knew nothing about it and did not even think that he was aware of the existence of Bishop Davies. I accept his evidence about this.
This prior knowledge has particular significance when considered in the context of the defendant's failure to accept responsibility and its conduct in seeking and receiving the benefit of a full release from liability as part of the settlement. The Church's early knowledge of Daniels' propensity provided a basis for its direct liability, at the very least in respect of its negligence, as opposed to legal responsibility based solely on vicarious liability for Daniels' conduct. Further, the negotiations were conducted on the basis that the settlement would not include aggravated and/or exemplary damages. However, the prior knowledge by senior bishops of Daniels' propensity for sexual abuse, and their consequent failure to disclose this and to take any active steps to ensure that Daniels was not brought into contact with children such as the plaintiff, together with his subsequent promotions and rewards within the Church hierarchy, provided a clear basis for damages to be assessed on such a basis. Finally, such information, had it been made available to the plaintiff, may well have changed his attitude to entering into the settlement at all. I refer to my earlier acceptance of his evidence that had he known about the Church's prior knowledge of Daniels' propensity to sexually abuse children in his care, together with knowledge that Bishop Newell had consulted senior colleagues prior to the settlement, that this information would have changed his attitude to the settlement, and he would not have signed the deed.
I am satisfied also that the defendant's decision to require all settlement money to be paid by Daniels personally, and to not contribute to the settlement, was used in an oppressive way during the course of the negotiations. Mr Abbott was aware and the defendant was advised by him early in the negotiations, that the plaintiff "is interested in a negotiated settlement and avoiding publicity". (See letter from Dobson Mitchell Allport to Assistant Bishop dated 5 May 1994). I reiterate that in the letter of 25 May 1994, Mr Abbott advised Bishop Stone that he had informed the plaintiff's solicitors that the Church would not stand behind Daniels and that if any payment was expected directly from the Church, it would involve "wide publicity". Further, he had explained Daniels' limited means to the plaintiff's solicitors and confirmed that his intention in doing so was to "lower their expectations as to the amount required to settle the matter". As already noted, the only sentiment expressed by Bishop Stone in his letter in response to Mr Abbott's letter was that "The progress made thus far is satisfactory indeed".
In my view, the defendant's refusal to take responsibility, and to "stand behind" Daniels, and its use of that position to lower expectations as to settlement by reference to Daniels' limited means and the prospect of wider publicity if the Church itself contributed to the payment, was conduct which, in my judgment, was oppressive. In any event, this conduct, taken together with the other factors already discussed, strongly supports a finding that it is in the interests of justice to set aside the agreement. Notwithstanding his legal representation, the plaintiff was negotiating this settlement at a time when he was vulnerable because of his age and the psychological consequences of the relevant conduct. That conduct was sexual abuse by a priest, who had subsequently been promoted by the Church to higher office. Critical information had been kept from the plaintiff, and the attitude of the defendant, manifested by its refusal to accept responsibility itself, would undoubtedly have weighed heavily on his decision making and approach to the question of settlement. These factors also affect the assessment of the reasonableness of the amount of the settlement. When the amount is considered in the context of the comprehensive release from liability secured by the defendant, and the plaintiff's expectation as to the appropriate quantum of damages had he been aware of the information which the defendant had kept from him, its apparent reasonableness, even according to norms of the time, is far less convincing. When regard is then had to what has transpired in the meantime, and the quantum of damages appropriate as a result, the amount of the settlement can only be described as completely inadequate.
Further, when considering the interests of justice in this case, it is appropriate, in my view, to take into account that the apparent priority of the defendant was to ensure that the allegations against Daniels did not become public and thereby affect the Church's reputation. The existence of this concern can be inferred from Bishop Newell's conduct before and since the agreement was put in place. For example, I refer to the Bishop's warning to Daniels in the letter of solemn admonition that his resignation as a priest would be immediately required if the commencement of an action resulted in a "public situation", with the implication being that he would otherwise remain in the positions to which he had been promoted. The inference is also supported by the Bishop's attitude to the disclosures, including his failure to report the allegations to the police, the failure to provide or offer psychological counselling and the absence of any public disclosure of the reason for Daniels resignation in late 1994. There is also, of course, the question of the confidentiality clause contained in the deed. I accept that the plaintiff also did not want his allegations becoming public knowledge, but as I have already discussed, this was used as a factor against him in the negotiations, and does not in my view account for the confidentiality clause. Had this been the only consideration, it would have been easy enough for Mr Abbott to draft a clause that was only binding on the defendant, and discharged when the plaintiff chose to reveal the relevant information. That is clearly not what was done, and indeed, Mr Abbott expressed some pride in his capacity to draft the confidentiality clause which operated so effectively and extensively. He said in answer to a question in cross-examination about this:

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In summary, I am satisfied that the defendant's approach to the settlement and the deed giving effect to it was heavily influenced by its desire to protect its public reputation. In my view, this is a significant consideration in determining where the interests of justice lie in respect of the settlement, particularly when considered in conjunction with the unfounded denial of liability.
In respect of the arguments made on behalf of the defendant on this issue, I accept that litigation risk, in particular the assertion of an intention to rely on a limitation defence, was not expressly asserted or relied upon by the defendant in the negotiations. I am content to accept that the settlement sum was not discounted by the plaintiff on that basis. However, this does not affect my analysis of the adequacy of the amount set out above. Further, it is appropriate to take into account that the defendant, having secured a settlement in 1994, was entitled to consider that the matter had been resolved then, until the relevant amendments permitted this application to be made. It can be envisaged that in a case where the defendant maintains a denial of liability in respect of the relevant conduct, then questions of general and perhaps specific prejudice may arise. However, such a consideration is not relevant in this case, given that the defendant has admitted its liability in respect of both pleaded causes of action. On the contrary, the clear conflict between the denials in 1994, and the acceptance of responsibility now, supports the setting aside of the agreement. The position now taken by the defendant manifested by its admissions in this case was a course which was open to it in 1994. Instead the defendant negotiated the settlement based on denials of liability, which it now appears had no factual or legal merit, with a view to limiting the Church's responsibility. At the very least, the defendant cannot, in these proceedings, properly or justly claim prejudice or rely upon the delay to support the original settlement.
Having taken all of these factors into account, I am satisfied that it is in the interests of justice to set aside the agreement. Accordingly, I make that order. This decision removes the agreement as a bar to this action.

[164]

The impact was exacerbated by Daniels' ongoing contact with him between each assault. For example, there was the telephone call when Daniels called the plaintiff at his home to invite him to come to camp. Daniels' conduct during the trip to the Gold Coast, which did not involve any direct sexual abuse of the plaintiff, but did of one of his friends, caused discomfort and uncertainty and thereby exacerbated the effects of the sexual abuse perpetrated on the plaintiff. The plaintiff explained that he remained in CEBS, and therefore in regular contact with Daniels, because he enjoyed the friendship and the camps. This included Daniels' friendship and the attention he received from him. The mixed feelings and complicated dynamics of a relationship are, of course, well known aspects of the context in which abuse of young persons often takes place, particularly when it is perpetrated by someone who relies on his authority and position of trust to provide the opportunity for and facilitate the abuse. The supposed positive aspects of the relationship are insidious and ultimately highly damaging to the person abused, including because of their contribution to the immediate and long term psychological consequences of the abuse. These consequences are invariably caused by the confusion and sense of betrayal arising from the conflict between the underlying relationship and the sexual abuse. These are precisely the emotions identified by the plaintiff in this case.
I am satisfied that the impact on the plaintiff has also been compounded to a significant extent by the response of Bishop Newell and the Church generally to the plaintiff's disclosures of abuse, both at the time of the disclosures and over the years since. The failure by Bishop Newell to provide any counselling or support to the plaintiff, or to report the activities of Daniels to the police and to actively persuade the plaintiff from doing so are admitted particulars of the plaintiff's case in negligence. In any event, it is abundantly clear from the evidence that Bishop Newell did not provide even an offer of counselling and support to the plaintiff at any time. Further, the extraordinary and almost immediate promotion of Daniels to positions of high authority and responsibility in the Church, and the failure to remove him from any position in which he could have contact with children, including from CEBS, is conduct that was likely to impact heavily on the plaintiff, and his emotional and psychological health. This impact was confirmed by the plaintiff in his evidence. He said that he was aware of the promotions and their significance, and in respect of them:

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This view that the Church was untrustworthy and dishonest with respect to his allegations and its response in respect of Daniels, is an attitude that has consistently remained with the plaintiff, and has caused emotional and psychological pain throughout his life. This pain has been particularly apparent during events which have prompted him to revisit the abuse. Examples of such events are during the negotiation of the settlement agreement and the plaintiff's involvement with the Royal Commission.
A considerable amount of time at trial was spent examining the impact of the sexual abuse on the plaintiff's education. The evidence about this came mostly from the plaintiff's testimony, but there was also considerable documentary evidence available in the form of end of year reports and other contemporary school documents.
The plaintiff's assessment is that he performed "very well" during primary school. His first year in secondary school, grade seven, was undertaken at Claremont High School. This was in 1983. Again, he achieved excellent results. His school reports and assessments for that year confirmed his own assessment that he was "one of the best students in that school". He performed particularly well in science.
He attended the Friends School for the remainder of his secondary schooling. The plaintiff's evidence is that he struggled with his academic performance in 1984, Grade eight. He attributes this to the effect of the sexual abuse that occurred over the Christmas break at the start of the year. I accept the evidence concerning a marked decline in his performance during 1984, which continued to a varying extent throughout the balance of his secondary schooling. There is an issue between the parties as to the reason for this decline. During those years, there were problems within the family home, particularly with his parents' relationship. At some point around this time, perhaps as a response to the tensions in the marriage, his father had also relapsed into excessive alcohol usage.
In 1985, grade nine, in addition to struggles with his education, the plaintiff recalls that he was also showing generally signs of psychological and emotional downturn. He said that during that year, he became "very withdrawn" and gave an example of choosing to sit at lunchtime in a hall, in the dark, away from fellow students, to eat lunch. He felt, and friends told him that he looked, depressed. The decline in his academic performance continued into year ten. He felt that he "just couldn't organise" himself to do homework and would often be chastised by teachers for this. In particular, comments by teachers on school reports during the years 1986 and 1987 (years 10 and 11) demonstrate a marked divergence between his capacity to achieve good academic results, which was assessed as high, and his work effort, which was poor and invariably offered as the reason for his overall poor academic performance during these years.
The plaintiff's evidence is that from a very early time in his life, at least from the early years of primary school, he had a strong and focused interest in rocks, geology and mining generally. I was provided with anecdotal evidence from that time which would certainly seem to support the plaintiff's evidence about this, and in any event, it was not the subject of challenge. Despite his academic performance in secondary school, the plaintiff gave evidence that he maintained a persistent and ongoing interest in geology and mining. In year ten, he undertook some work experience with a senior director of the Department of Mines, which he says is indicative of and confirmed his interest in this area. He saw his ultimate career aim as working in the areas of geology and/or mining engineering. He was aware that he needed to perform well in specialised subjects relevant to that field including advanced forms of mathematics. However, at the end of year ten, he met with the teacher who was head of mathematics in the school concerning his performance in that area. The teacher told him "I can't see a future for you at University" and suggested that he should consider taking up a trade as a career option. It is clear from his evidence that the plaintiff regarded this comment as a significant event, and one which was devastating in respect of his ambition to enter the mining industry.
The plaintiff started year 11 in 1987 with an intention to "turn around my academic performance". He selected geology as a subject and made a comment to his father, demonstrative of his optimism, "I think I can get pretty close to the top of the State in this subject". However, the river assaults were perpetrated on him in March of that year, and the meetings with Bishop Newell continued throughout the year. The plaintiff's assessment is that his academic performance, which had started with optimism, fell away dramatically during the course of the year. This assessment is confirmed by comments made in school reports. A report on year 11 geology prepared in May 1987 notes the plaintiff's enthusiasm for the subject but includes comments such as the following:

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These comments reflect a theme contained throughout the reports for that year.
The plaintiff's final year in secondary school was completed in 1988. A letter from the school suggests improved performance, which the plaintiff says was assisted by his father providing or arranging for some coaching in specific subjects. His aim still was to enrol in University with a view to studying geology or mining engineering. However, the plaintiff's evidence is that his results in relevant subjects, such as geology and advanced mathematics, were not sufficient to warrant enrolling in such a degree and instead he was advised to undertake a general science degree with a "life science as focus". This was the course he followed, although such a degree would not facilitate his direct entry into the mining industry.
The plaintiff's first year at University was characterised by a poor work ethic and a significant problem with the excessive use of alcohol. The plaintiff failed a number of subjects and, at the end of the year, was placed on academic probation by the Dean. However, late in the year, he received support from the parents of a friend, which included spending some time on their hobby farm during holidays. His academic performance improved in the following year, and he eventually went on to undertake and successfully complete an Honours degree in biochemistry in 1992. He enrolled in and commenced a PhD course in biochemistry in either 1993 or 1994. Having regard to the evidence of his wife, Kelly Steen, it seems clear that he commenced this degree in 1993, which is also consistent with my clarification of the point with the plaintiff in his evidence. The plaintiff was otherwise unclear about this in his evidence. In any event, he successfully completed this degree in 1997.
The plaintiff's evidence is that during the first couple of years of the PhD course, he again experienced a deterioration of his mental health. He suffered depression and, on occasion, contemplated whether it was "worth continuing my life". As previously discussed, it was during the 1994 year that he decided to take legal action against the Church, which ultimately led to the settlement. He had not sought nor received any psychological counselling before seeing Dr Clifford in that year, after he had consulted Mr Smith. I reiterate that neither Bishop Newell nor anyone else on behalf of the Church had offered to put in place any form of psychological counselling or assistance.
On the other hand, he did commence his relationship with his wife during 1994. They started to live together towards the end of that year.
After completing the PhD in biochemistry in 1997, the plaintiff spent some time away from academic work. He spent some of this time working as a guide on the Overland Track. In 1998, he commenced a PhD course in business. He combined his work on this degree with tutoring and a low level lecturing position. This combination of work continued between 1999 and 2001. The impression I gained from the plaintiff's evidence was that this period at university was difficult, particularly because of his mental health. He described having a difficult and argumentative relationship with the professor supervising the PhD.
In 2002, the plaintiff transferred the supervision of his PhD to a professor with whom he had become familiar at the University of Queensland. He was offered employment as a lecturer at that University, and he moved there to take up that position and continue his PhD studies. He submitted and completed the PhD in business in 2004.
On 4 January 2003, the plaintiff and his wife Kelly were married. In 2005, he learned of the death by suicide of AB and the further convictions of Daniels in respect of sexual offences against children. In evidence, he described his feelings upon learning of Daniels' convictions as "devastated and angry because ... what he was charged with was right through the 70's, 80's and 90's. It was obvious that he had been a dangerous paedophile for a very long time and I had the opportunity to stop him and I didn't take that opportunity when I had it. I felt terrible."
In 2005 and 2006, the plaintiff engaged in psychological counselling, which included a form of treatment called EDRM. He describes this treatment as traumatic, but it did assist his mental state.
After completing the PhD, the plaintiff continued to work as an academic at the University of Queensland Business School until 2019. The work included research and some projects in collaboration with industry. For example, in 2008, he engaged in an industry research project in collaboration with Rio Tinto. Also in that year, he volunteered for and participated in the development of a course for managers with a mining technology company. In 2011, he was involved in a project in collaboration with Ernst and Young. It is clear that in respect of industry related work such as this, the plaintiff was developing relationships with people in senior positions in the relevant industrial entities.
The plaintiff describes his mental health during his time with the University of Queensland as variable. At one point his mental health was "pretty good...I was working hard...being quite productive in terms of research...my mental state was bearing up". On the other hand, he describes an ongoing problem with his relationship with men in more senior positons to him. He had already had difficulties with his supervising professor in Tasmania, and this seems to have continued in respect of a number of senior people at the University of Queensland.
A further difficulty described by the plaintiff concerns his progression through the ranks of the academic world. He was appointed as an associate professor of the University of Queensland Business School in 2012. He expressed the opinion that he had moved to this position "slower than others". He attributes that slow progression largely to his interest and preference for industry projects over other forms of academic work such as research and publishing academic papers. His view is that the latter is of more assistance in achieving promotion in the academic world.
During these years, he became aware of the Royal Commission. In 2015, he was contacted by an investigator for the Commission, who requested that he make a statement concerning the abuse which Daniels had perpetrated against him. He provided the statement but found the process difficult and, I infer, traumatic. He was asked to give oral evidence in the Commission's hearing in Hobart, but opted instead to give that evidence by video-link from Brisbane. He did this because he "wasn't psychologically able to do it" in Hobart. He was aware of others giving evidence. This included Daniels, but he was not able to watch his evidence. He did observe Bishop Newell's evidence. He found this evidence to be "infuriating" but "was delighted because the work that was done by the Commission actually uncovered the lies". He was particularly upset when Sue Clayton gave evidence, to see her "pursued aggressively by the QC for the Diocese". He considered this to be "outrageous...totally unnecessary...more corruption, more high handiness, more of the same".
He discovered some information for the first time through the Royal Commission process. Some of it was hurtful, and contributed to the ongoing impact of the abuse. For example, he became aware that a friend from his youth, a person whom he had associated with through his involvement in the Church and CEBS, and had become an Anglican bishop, Phillip Aspinall, had provided a positive reference for Daniels in respect of his sentencing by Slicer J in 1999. He found this act "catastrophic".
The most significant revelation for the plaintiff that came from the evidence at the Royal Commission was the knowledge that the defendant had been aware of Daniels' propensity to commit sexual offences against children in the early 1980's. He realised that had the Church responded appropriately, the sexual abuse perpetrated by Daniels against him could have been avoided.
Between August and December 2017, the plaintiff took sabbatical leave, which he spent in Vancouver, Canada at a mining school there. As a result of this experience, he decided to work towards obtaining permanent academic work in Canada. In April 2019, he secured a non-tenured grant position with the University of British Colombia (UBC) in Vancouver. A condition of that employment, arising from the funding of the position, required the plaintiff to take up an associated role with a research institute associated with the mining industry known as the BRIMM Institute (Bradshaw Research Institute for Minerals and Mining). Initially, the plaintiff's association with BRIMM was as an affiliation but within a short time, he had become its director. This occurred in July 2020.
In 2019, the plaintiff was also appointed as an honorary professor at the Reykjavik University in Iceland. From a practical point of view, this appointment involves one week of guest teaching at the University each year. For that work, the plaintiff is paid an honorarium of 12,000 euro per annum.
The plaintiff has found it difficult and stressful carrying out the combined work in his academic role with the University of British Colombia and as director of BRIMM. Both roles carry considerable responsibility and expectations. He has also continued the pattern of coming into conflict with men more senior than him in the relevant hierarchy.
In his academic role, the plaintiff has maintained his rank as associate professor with UBC. In 2021, he applied for appointment as a professor. His application was unsuccessful. The plaintiff attributes the decision to reject his application, to a professor with whom he had had prior conflict. After learning that his application had been unsuccessful, he became furious with this man and "said some things to him which were very offensive". In early 2022, the plaintiff realised that he was becoming "increasingly distressed, despondent and depressed." He sought medical advice. He was already taking an anti-depressant, Pristiq, at the maximum dosage. The doctor prescribed Wellbutrin, in combination with the Pristiq. He found that this medication controlled his anxiety to the extent that he was able to continue to perform his dual role as director of BRIMM and his academic work. However, he considers that the symptoms of anxiety and stress, even with the medication, continue to impair his capacity for work.
In addition to the academic position, the directorship of BRIMM and the honorary position with the University of Reykjavik, the plaintiff had been appointed as editor-in-chief of a project management journal, which he described as "an internationally recognised research journal in the field of project management". The remuneration for the position was estimated by the plaintiff at approximately $20,000(USD) per annum, with generous travel benefits in addition to the honorarium. The position had not actually commenced at the time of trial, although it was due to commence shortly after.
In respect of future prospects, the plaintiff's evidence is that he is unlikely to be able to work for much longer. His belief is that the difficulties that he has experienced in performing the various roles that make up his current work load, are directly related to the stress, anxiety and other symptoms which have affected him throughout his life and are a consequence of the sexual abuse perpetrated by Daniels. He conceded that these may have been compounded in recent times by the prospect of the trial and Daniels recent appearance in Court to answer criminal charges relating to historic sexual abuse, including in respect of the plaintiff's case. There is also the ongoing stress associated with the Royal Commission process. He acknowledged that there has been a "past pattern that I have had throughout my career of having periods of wellness where I do really well and then ... something happens and I ... have a collapse and then I need to rebuild ... I am 52 in January, I don't have the energy to go through the rebuild process again". He has already discussed his difficulties with his superiors at UBC. His current contract is due to end in July 2024. He believes that he will retire at that time and in the meantime will "pare back everything I do to a minimal function" in order to get through that period and still fulfil responsibilities to both BRIMM and UBC. His intention is to resign the honorary position at Reykjavik University and not take up the senior editor role with the journal.
The plaintiff's evidence was that he intended to resume treatment with Narelle Dickinson. He anticipated that this would involve EDMR treatment.
The plaintiff believes that he will not have prospects for employment or to otherwise earn remuneration after the completion of his contract with UBC. A move to academia in another university would engage the same difficulties. An attempt to secure a position or consult to the private sector, in particular the mining industry, would probably not succeed and in any event would be precluded by his psychological difficulties because it would involve "a high level of stress". He discussed having stayed in the academic world because it provided a refuge and buffer from the effects of the psychological difficulties, although he believes he has reached the end with this. He does not believe that any other university would offer anything other than a fulltime position.
The evidence does not establish any significant impact of the plaintiff's psychological injuries on his personal life. He and his wife have two children, aged 13 and 15 at the time of the trial. The family relationships seem strong, and the plaintiff participates in and enjoys a variety of recreational pursuits. He has a reasonable social network. Mrs Steen provided some anecdotal examples of occasions when stress and anxiety have manifested in the plaintiff's behaviour at home, but in general terms, it is clear that he is usually a calm and loving member of the family unit.
The defendant did not challenge the plaintiff's credibility at all. However, in cross-examination, Mr Read took the plaintiff to various aspects of his evidence, in order to test the plaintiff's conclusions concerning the impact of the sexual abuse upon him at various stages of his life. Much of this was concerned with the impact upon his career development, and consequently past and future earning capacity. I will return to that cross-examination in more detail when discussing those heads of damages.

[185]

In his oral evidence, he expanded upon this opinion. He expressed the view that "at this point in time it is highly unlikely that he's going to be able to continue through to July 2024 in those positions". This was a reference to both his UBC contract and his role as the director of BRIMM. He explained that he thought it was likely that the plaintiff's depressive symptoms will further deteriorate and that this will impact his capacity to perform those roles.
In terms of prognosis, Dr Weissman expressed the view that the plaintiff's "prognosis for the future is only fair, at very best" and that the psychiatric conditions and mental injuries are "permanent and will last for the foreseeable future (indefinitely)". He considered that this was the case irrespective of future treatment. In cross-examination, it was put to and accepted by the witness that the plaintiff has a number of "good prognostic indicators", including the presence of family support, his ability to hold high level academic positions throughout his career and his interest in and participation in a large number of recreational pursuits. He also accepted, as has already been discussed, the general proposition that the impact of the psychological conditions arising from the sexual abuse varied in intensity from time to time. He accepted that this explained the difference between a relatively benign assessment in 2018 and his current assessment. In particular, there are a number of factors at play at the present time including the trial, which contributed to an exacerbation of those symptoms. However, despite these concessions, it seems to me that Dr Weissman did not resile from his opinion generally with respect to the past and future condition of the plaintiff and, in particular, the impact of his psychological and psychiatric condition on his work capacity. He made the point that "his depressive state has deteriorated since then" a reference to the 2018 report, and "my feeling is that it is not necessarily related to this particular court case, though his general levels of anxiety and, for want of a better word, stress might have increased in part due to that. But it is the difficulties he is having at work and also.... this is an extended period of time in which he is experiencing moderate depressive symptoms and moderate post-traumatic stress...there has been a shift since earlier this year and yes the case is one contributing factor".
Finally, Dr Weissman discussed treatment recommendations. The recommended treatment has three main components:
- Consultation with a general practitioner on a regular basis for supportive therapy and treatment.

[190]

Although the acts of sexual abuse were each limited in duration and did not involve more serious forms of sexual acts, such as penetrative sex or sexual interaction to the point of ejaculation, the abuse was serious and damaging to the plaintiff. As Dr Weissman pointed out, these acts occurred when the plaintiff was aged between 9 and 16, a critical time in the plaintiff's emotional and psychological development. They were committed in circumstances of a significant imbalance of power, and in that sense the plaintiff was clearly subjected to sexual abuse by force. It is significant that aspects of personal intrusion and force, such as the feel "of the moustache on the mouth" have remained as vivid memories and triggers with the plaintiff throughout his life. Each act was committed when the plaintiff was alone and helpless and, in his evidence, he described the confusion and fear which resulted from this circumstance. The actions of Daniels were in complete conflict with the plaintiff's perception and belief that the priest was a man of God. They occurred on CEBS camps, which were meant to be an environment of fun and safety.
It is completely understandable, therefore, that the plaintiff immediately suffered the feelings and emotions which, as Dr Weissman explained, underpinned the development of the ongoing and indeed permanent psychological consequences of the abuse. I accept Dr Weissman's opinion that the sexual abuse caused the development of moderate to moderately severe longstanding psychiatric symptoms, conditions and mental injuries, which I have already listed and discussed in some detail. I conclude, based on all the evidence, that the sexual abuse and its psychological consequences have led to lifelong and chronic impact on the plaintiff's life.
I accept the plaintiff's evidence concerning his description of this impact. As I will describe shortly, I am satisfied that the sexual abuse impacted his school performance including his academic results, his university education and his professional life. The defendant did not dispute this, but submitted that I should assess the impact of the sexual abuse by reference to the outward indicia of a successful professional and personal life. In particular, it was pointed out that the plaintiff has achieved and maintained a happy family life, he participates in many activities shared with both family and friends, and his professional life has been successful and fulfilling. These are certainly matters to be taken into account, but they do not, in my view, reduce the significance of the impact of the lifelong psychological impairment, which has been a constant and unwanted feature of the plaintiff's life, and which would not have been but for the sexual abuse perpetrated by Daniels, compounded by the negligent and damaging response of the defendant. The plaintiff's evidence concerning the suffering this has inflicted on him is clear. His residual success in his personal and professional life can be explained by a pre-existing high level of intellectual and functional capacity and ability, by his capacity to push through the impact of the psychological symptoms, and of course by the positive support which he has received from his wife and family. However, this does not detract from the damaging consequences of the tortious conduct. In general terms, the only available finding is that the ongoing psychological symptoms and impact of the sexual abuse and the negligence of the defendant have resulted in significant and permanent impact on the plaintiff's life.
The defendant's counsel sought to place emphasis on the plaintiff's own description that the psychological symptoms come in waves. It was submitted that there were certain periods described by the plaintiff in evidence as representing low points. These coincided with events which were directly concerned with the sexual abuse. This included the death of Mr AB, the exacerbation of symptoms around the time of the Royal Commission and this trial. It was submitted that I should regard the plaintiff's evidence in the trial as having been "given through that particular prism, that is, in the eye of the storm". The point of the submission was, I think, that I should take care to limit my assessment of the impact of the tortious conduct for which the defendant is liable by reference to these "low points".
If this is what was suggested, then it does not properly reflect the evidence or the full impact of the damage sustained by the plaintiff. My impression of the notion that the symptoms come in waves is simply that they are sometimes more intrusive and damaging than at other times. I would have thought that such a conclusion is not particularly surprising, and simply accords with a common sense appreciation of the normal fluctuations of life. The point is that each fluctuation occurs against the backdrop of the ongoing psychological impact of the abuse and the defendant's conduct. Dr Weissman accepted that this is the case. As I have already noted, he explained that even in the less intrusive periods, the psychological effects are still operative and impact the plaintiff's performance and enjoyment of life. Ultimately, the important point is that the conduct for which the defendant is liable has had a lifelong and constant impact upon the plaintiff, notwithstanding that the severity of symptoms vary in response to life circumstances and his general health from time to time.
I also reject the submission that I should discount the plaintiff's evidence about the severity of the symptoms and his views about his future because when giving that evidence he was in "the eye of the storm". I do not think that this is an accurate description of the context in which he provided his evidence. I accept that he has reached a point where he is experiencing a current exacerbation of depression and stress, and that this is associated with loss of interest in work to a point where his views about his future capacity to continue his employment reflect his current psychological condition. However, having regard in particular to the prognosis expressed by Dr Weissman, I am satisfied that there is a high probability that the plaintiff will not recover to any significant extent from his current condition. In other words, I accept that it is unlikely that the plaintiff will be in a position to "bounce back" as easily as he has done in the past, if at all.
A further submission by the defendant concerned the impact on the plaintiff's development and consequent psychological condition of the adverse circumstances of his family life during his childhood and early adolescence. It is clear that these circumstances coincided to some extent with the period over which Daniels perpetrated the sexual abuse upon the plaintiff. Again, I accept Dr Weissman's opinion about this question. In particular, Dr Weissman rejected the proposition that had the sexual abuse not occurred, the plaintiff would have developed the psychological symptoms in any event. Dr Weissman expressed the view, which I accept, that to the extent that those circumstances had any short term impact on the plaintiff's psychological condition, they have been entirely subsumed by the effects of the sexual abuse. In my opinion, there is no reason to discount my assessment of the impact of the abuse on the basis that the difficulties in the plaintiff's' family life would have resulted in long term harm in any event.
In this case, the parties have proceeded on the basis that the provisions of the Civil Liability Act 2002, at least insofar as they affect the assessment of damages, are not applicable by virtue of the provisions of s 3B. I accept this position, and in particular that the reference in s 3B (1) to "civil liability - in respect of an intentional act....that is sexual assault or other sexual misconduct" is wide enough to capture the claim against the defendant in negligence, although this point was not the subject of argument or detailed submission. Accordingly, in assessing damages under this head, I respectfully adopt and proceed on the basis described by Blow CJ in ZAB v ZWM [2021] TASSC 64 at [122]. I apply the decision of the High Court in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62 1968 119 CLR 118, in particular that I must "be aware of and give weight to current general ideas of fairness and moderation". As Blow CJ pointed out, in determining general ideas of fairness and moderation, it is appropriate to take into account awards generally throughout Australian jurisdictions.
I have taken into account a number of such cases, including ZAB v ZWM itself, Erlich v Leifer [2015] VSC 499, PCB v Geelong College [2021] VSC 63, as well as a number of Western Australian decisions including Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27, and comparable cases referred to in that decision from Victoria and New South Wales. The variety of awards made in those cases for pain and suffering resulting from sexual abuse perpetrated upon children by those in authority in churches and schools, vary within a range of approximately $250,000 to $400,000. It is, of course, impossible to make direct comparisons because the circumstances of abuse and its consequences vary significantly from case to case.
In this case, having regard to all of the circumstances, I assess damages for pain, suffering and loss of enjoyment of life in the sum of $275,000.

[204]

(b) The Church's prior knowledge of Daniels' propensity to commit sexual abuse against children, and its negligence in leaving him in a position in which he had direct access to children and the opportunity to commit sexual abuse, particularly in his role in CEBS, is also relevant to the assessment. It was submitted that when assessing the conduct of the Church, and its representatives, particularly the bishops, that I should have regard to the fact that when this abuse was committed and in respect of the Church's reaction thereafter, there was not the same understanding of the impact of sexual abuse as there is now. I have no difficulty with that general statement and indeed, better knowledge and understanding of the impact of such abuse is reflected in a significant increase in both the assessment of compensatory damages and criminal sanctions for such conduct, as time has gone on. However, in this case, that argument does not assist the defendant. The real danger posed by a male in a position of power such as Daniels, to children in his care, in circumstances where there was prior knowledge of his propensity to commit sexual abuse against children, was as obvious and repugnant then as it is now. The concern demonstrated by Bishop Newell concerning the potential public reaction if the conduct of Daniels became known publicly, makes it clear that such conduct was a matter of grave concern then as it is now. Any suggestion that the risk of sexual abuse of children by a priest should in some way be regarded less seriously because it was being committed in the 1980s, rather than now, must be rejected. Hence, leaving Daniels in CEBS, rather than removing him from contact with children, which was always the primary concern of the plaintiff in reporting the conduct to Bishop Newell, and further rewarding him with promotions and other appointments over a period of several years, constituted highhanded and reprehensible acts and conduct, which were bound to increase the damage experienced by the plaintiff as a result of Daniels' abuse. This is particularly so when seen in the context of the meetings in 1987 between the plaintiff and Bishop Newell. I accept the plaintiff's evidence that he left those meetings with the belief that he had done what he could to prevent Daniels from abusing other children and he trusted Bishop Newell to take appropriate action. It was extremely clear from his evidence that Bishop Newell's failure to take this action, but rather his promotion of Daniels, was a factor which clearly aggravated the impact of the abuse.

[221]

The point is made in many cases that exemplary damages are rarely awarded, see for example Gray v Motor Accident Commission. Clearly, the award of exemplary damages as a punitive mechanism is an exception to the primary basis of damages awards in civil cases, which is the compensation of the plaintiff. Punishment is normally the function of the criminal law, and the authorities are clear that where there has been substantial criminal punishment inflicted for the same conduct, exemplary damages will not be awarded. This may also apply in cases where criminal sanctions, not already imposed, are anticipated. See Gray v Motor Accident Commission. These circumstances do not apply in this case. Daniels has now been sent to prison for crimes which include those committed against the plaintiff, but the defendant, of course, has not been subject to such punishment.
There are some other factors, inherent in the punitive nature of exemplary damages, which explain why such a remedy may not be appropriate. Firstly, there is the nature of the conduct itself. The conduct deserving of punishment must amount to "conscious wrongdoing in contumelious disregard of the plaintiff's rights". Whitfeld v De Lauret & Co Ltd [1920] HCA 75; [1920] 29 CLR 71 at 77. In this case, there is no question that the acts of sexual abuse perpetrated against the plaintiff answer this description, and the vicarious liability for such acts on the part of the defendant does not preclude its potential liability for an award of exemplary damages. Gray v Motor Accident Commission. However, there is the question concerning many acts of conduct on the part of the defendant, which are asserted by the plaintiff to be relevant to the question of exemplary damages, and for which the defendant's direct liability arises from its negligence. Gray v Motor Accident Commission is a motor vehicle case which involved contumelious disregard of the rights of the plaintiff, in the context of a claim in negligence. It was held by the High Court that such conduct can attract an award of exemplary damages:

[230]

It will be obvious from my discussion of the conduct of the defendant upon which the claim in negligence is based, that such conduct is of a nature to warrant an award of exemplary damages. The defendant did not strongly argue to the contrary. However, junior counsel for the defendant, Ms Norton submitted that such an award is inappropriate having regard to steps taken by the defendant to reform its practices and address the risk of sexual abuse within the Church, including by clergy. It is argued that such action constitutes an appropriate expression of remorse and atonement for past wrongs, and removes the need for deterrence. The submission is that this is of particular significance because of the importance of deterrence as a factor supporting an award of exemplary damages.
The evidence as to the defendant's response to the issue of sexual abuse within the Church environment came in large part from the testimony of Bishop Jones. In summary, the Church has been developing and improving its response since at least 1995. The focus has been on improving safety within the Church community by raising awareness and developing a "culture of safety". There has also been attention paid to improving the response of the Church to those who have suffered abuse. As time has gone on, the defendant has improved and adjusted its response to take account of community reaction, including that expressed in forums such as the Royal Commission. The progress of the response has been hampered and complicated by Church structures, such as the independence of each Diocese and the need to incorporate and mandate the changes through Church legislation. The Anglican Church has a roughly federal model, and implementation of policy through ordinance requires the approval of the national synod, which apparently only meets once each year.
Some specific steps taken by the defendant include:
- The first significant response was the "Not the Way of Christ" Inquiry set up in 1997. This seems to be the first real attempt to investigate the extent of sexual abuse perpetrated by clergy and officers of the Diocese. Bishop Jones said he was shocked and "incredulous" about the "huge numbers" of perpetrators and victims identified by the Inquiry. My impression is that those in authority in the Diocese had no understanding of the extent of the problem until this time. Of course, that is not to say that they were not aware of the existence of the issue, but had not, until this Inquiry, attempted to assess the numbers affected by it.

[236]

I am satisfied that the defendant has taken comprehensive action over the years to understand and deal with the risk and actuality of sexual abuse by clergy and others under its authority. This is, of course, relevant to the question of exemplary damages. In a general sense, there is merit in the assertion that there is no longer a need for an award to meet specific deterrence. Apart from any action taken voluntarily by the defendant, the reality is that the long period of inaction, toleration and cover up by institutions generally in respect of the sexual abuse of children under their care, has created a legal framework where the protection of children now is subject to imposed regulation. However, general deterrence can also justify an award of exemplary damages. An award which marks the Court's disapproval of the relevant conduct, and consequent punishment of the defendant for it, may thereby deter others from engaging in similar conduct. Notwithstanding the work of the Royal Commission, and other inquiries and legislative responses, sexual abuse of children remains a significant problem in society. There is still utility in general deterrence in respect of such conduct.
In any event, deterrence is a consideration which ultimately merges into an evaluative synthesis of aggravating and mitigating factors relevant to the defendant's conduct, which then informs the exercise of discretion as to whether to award exemplary damages. Because punishment is the primary focus of the criminal law, awards of exemplary damages for civil wrongs should be granted only in a rare and clear case. However, it is also clear that if ultimately the court's judgment is that such an award is appropriate, then it should be made. Its utility in terms of deterrence will only be one factor informing that evaluation and ultimate exercise of discretion.
In this case, after considering all relevant matters, I have come to the conclusion that an award of exemplary damages, in addition to compensatory damages including aggravated damages, is appropriate. While all questions need to be taken into account, the particular factors of contumelious behaviour which warrant such an award are these:
- The defendant's prior knowledge of Daniels' propensity to commit child abuse and allowing him to remain in his positon with CEBS, thereby directly leading to the further abuse of the plaintiff and others. As I have already concluded, while it cannot be said with sufficient certainty that this knowledge predated the first assault, there is no doubt that it predated the remainder of the assaults, and Daniels' promotion to higher office in the Church.

[239]

In making this determination, I have taken into account actions eventually taken by some within the Church to address both Bishop Newell's conduct and that of Daniels. However, there is considerable merit in Ms Whalan's submission that I should also consider the time that it took to address these questions. In Daniels' case, the prior knowledge of the Church was not disclosed to the plaintiff until he learned about it as a result of the Royal Commission in 2016. Bishop Newell did not write to Bishop Browning about Daniels until 1997, and it took until 2002 before he was deposed as a priest.
Ms Norton relied on a decision of Keough J in Lonergan v Trustees of the Sisters of St Joseph & Anor [2021] VSC 651. In that case, the judge refused to make an order for aggravated or exemplary damages. His Honour accepted a number of submissions in respect of that question, one of which was, as Ms Norton submits, that in more recent times the defendant institutions have responded to issues raised by the Royal Commission and that there was wide spread, awareness and condemnation of the current abuse and society. However, Longergan was a very different case to this one. In that case, his Honour made a specific finding that the defendant was not aware of any prior abuse on the part of the relevant perpetrator. My assessment of his Honour's judgment is that this was a critical fact in determining the question of whether an award of aggravated or exemplary damages should be made. His Honour made a specific finding that: "The evidence does not establish that either the Diocese or the Sisters acted in deliberate or reckless or contumelious disregard of Mr Longergan's rights or that their conduct was so reprehensible that it involved flagrant conscious wrongdoing".
I take a different view in this case. The aspects of wrongdoing noted by me above constitute significant points of distinction.
The final submission relied upon by Ms Norton concerns the appropriateness of a further award, in addition to the compensatory damages and the significant financial expense incurred by the Church in respect of payments to survivors through its redress scheme and other forms of the liability. It was submitted that this should be considered in the context of a claim that the burden of a punitive damages award will fall on the "ordinary parishioners throughout Tasmania who are going to have to sell Church property, and are going to have access to reduced ministry and to reduced services".
With the exception of the latter point, I accept that the amount of compensatory damages, and the other steps taken by a church including meeting financial liabilities relevant to child sexual abuse, are relevant considerations, both as to whether an award should be made at all, and if it is, the quantum of that award. With respect to the latter point, I am not persuaded that it is a significant consideration. Firstly, the "ordinary parishioners" are, of course, a critical and inseverable part of the entity that constitutes the defendant. I would fully expect that the impact of any decision made by the Court will fall on the entire organisation including its constituent components. Secondly, and in any event, the defendant presented no evidence to demonstrate that it does not have the means to meet an appropriate award of exemplary damages nor that the impact of such an award will fall unfairly or unequally on any particular part of its organisation.
Ultimately, on any reasonable view, the conduct identified by me above as justifying an award of exemplary damages was extraordinary, even when judged by the standards of the time. It occurred because the leaders of the Diocese and wider Church were primarily focussed on the protection of the institution, rather than the welfare of those who were entitled to their care and protection, and were particularly vulnerable because of age and trust. The conduct identified by me all falls under the cause of action in negligence. It does not involve malice directed at the defendant, but it clearly constitutes "conscious wrongdoing in contumelious disregard of the plaintiff's right". Notwithstanding the work done since by the defendant, my view is that conduct of that nature requires an award to mark the Court's denunciation and disapproval of such conduct on behalf of the community, and to go some way to recognising the plaintiff's entitlement to vindication and justice.
Having made that determination, it is appropriate, however, to moderate the quantum of the award in this case, to take account of the significant award which will be made under other heads, including for aggravated damages. In my view, an award of $100,000 fairly and appropriately balances the various considerations, and in particular is sufficient to achieve the purpose of the punitive aspect of the award. Were it not for my consideration of the impact of the overall amount of damages to be awarded in this case, the award under this head would have been substantially higher.

[244]

In this case, the question of whether the tortious conduct for which the defendant is liable caused injury, in particular psychological injury, is a question of historical fact and to be determined on the balance of probabilities. However, the assessment of the impact of those injuries on the plaintiff's earning capacity requires the assessment of hypothetical possibilities. The plaintiff was a child at the time that the sexual abuse occurred, and the development of his career, and any consequent impact upon it resulting from that sexual abuse, was obviously some years into the future. The question of whether, had the tortious conduct not been committed and the psychological injuries incurred, the plaintiff would have both chosen to and had the capacity to be educated for and undertake work in the mining industry, and whether that would have resulted in a higher earning capacity than his demonstrated residual earning capacity, are obviously hypothetical questions. The question of whether he could have achieved earlier and higher promotion in his academic career involves similar considerations. Each involves an assessment of many hypothetical contingencies.
In Malec v JC Hutton Pty Ltd [1990] HCA 20, 1991 69 CLR 638, the High Court made clear that the assessment of the possibility of a hypothetical or a future event is to be assessed according to "the degree of probability that an event would have occurred, or might occur" and the award of damages adjusted "to reflect the degree of probability", per Deane, Gaudron and McHugh JJ. The possibility is to be taken into account "unless the chance is so low as to be regarded as speculative -say less than 1 per cent". In my view, this is the correct approach to the assessment of damages for impairment of earning capacity in this case.
I am satisfied that the plaintiff suffered significant psychological injury as a result of the sexual abuse, which impacted upon him immediately and has continued to affect him throughout his life. I have already discussed the nature of this impact in my assessment of non-economic loss. I reiterate that I accept the evidence of Dr Weissman and his opinion concerning this, and his identification of the conditions which have developed as a result of the injuries. Dr Weissman's opinion about this is entirely consistent with the nature of the sexual abuse, and the stage of the plaintiff's life in which it occurred, in particular "a very sensitive and pivotal stage of development". I accept the opinion expressed by Dr Weissman that the abuse has caused "a very significant, substantial, severe and irretrievable detrimental effect on his life trajectory" and has "resulted in major compromises in his functioning and emotional wellbeing".
Dr Weissman's opinion explains and confirms the plaintiff's explanation of the impact of his psychological and emotional state upon him throughout his life. This, of course, includes in respect of his work. There is no question therefore that the tortious conduct for which the defendant was liable has resulted in a lifelong impairment of earning capacity. The question now for me is to assess the extent of this, and the extent to which it "is or may be productive of financial loss".
I will deal firstly with the plaintiff's submission that had the tortious conduct not occurred, there is a high likelihood that he would have entered and succeeded as a geologist or mining engineer, and had an earning capacity greater than that achieved by him in academia. There was considerable evidence and debate at the trial in respect of this question. The debate included an aspect which focused on the defendant's counsel's depiction of the plaintiff's case as a "fork in the road" argument. Ms Whalan rejected this and it seems to me that ultimately so did Mr Read. That characterisation obscures the real issue. Having regard to the evidence presented to me, it is appropriate to regard the plaintiff's adoption of higher paying occupations as a hypothetical possibility, and then to assess the likelihood of that possibility in accordance with the principles in Malec v Hutton. In making this calculation, it is important to bear in mind that I am assessing hypothetical possibilities, and concerned with the loss of a chance to earn more from a higher paid occupation. As Heydon JA (as he was then) observed in State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536:

[246]

In this case, it seems to me, that a proper assessment of the probability of these possibilities requires an assessment as to the extent to which the plaintiff's injuries may have adversely affected his capacity to pursue subjects at University which would have qualified him for such an occupation, whether had he been able to do so, he would have taken those subjects, and then the prospect that he would have entered and been successful in that occupation, and in particular, the extent of the earning capacity available to him as a result.
I accept that the plaintiff from a very young age had a strong interest in geology. I accept that in the very general conceptual sense in which a young child would have entertained that interest, that he may have thought of it as his future career. However, I am also of the view that, at that point, he would not have been focused on the specifics of such a career, including as a geologist or a mining engineer. I accept that this interest stayed with him as he got older. However, I think it is unlikely that any specific thought about that industry as a career option would have crystallised in any specific sense, prior to the work experience he performed with the Department of Mines in grade 10. The plaintiff's evidence about this was that after that work experience he "still saw geology and mining as a fantastic career". The person with whom he did that work experience explained to him the importance of mathematics if he wanted to qualify as either a geologist or a mining engineer.
I accept that by and during grade 10, the psychological effects of the sexual abuse were adversely affecting the plaintiff's academic performance. There was considerable debate at the trial in respect of a temporal correlation between acts of sexual abuse and demonstrated poor performance. The defendant submitted that there was not a precise correlation. However, I do not view this issue as having any real significance. It would be completely unrealistic to expect that the existence of a causal link between the abuse and academic performance will be neatly reflected in such a temporal connection. I accept that throughout his schooling, the plaintiff demonstrated his considerable capacity for intellectual and sporting pursuits, but I am also satisfied that he was experiencing the impact of ongoing depression, anxiety and other psychological consequences of having been sexually abused by Daniels. The plaintiff described this on a number of occasions during his evidence, including in terms of the fact that sometimes his smart brain is turned on and can perform extremely well and other times his functioning is impaired to a very significant extent. I have already accepted that this accurately describes his longer term functioning throughout his life, after the abuse.
While this impact is relevant in a general sense, and of course has manifested in real impairment of his earning capacity, the question of its impact on the plaintiff's specific decision at the end of grade 12 to take subjects in his science course which can be described as life sciences, as opposed to the hard sciences which would have been more relevant to a career in the mining industry, is less clear. This decision seems to have been very significantly affected by both his actual performance and perception of his performance in relation to mathematics. I accept that his initial excitement in relation to undertaking geology in grade 11, and his subsequent poor performance in that subject, impacted that decision. It seems that much of the plaintiff's decision-making about the direction he took in his studies at University was influenced by advice he was receiving from others and his own perception of his academic capacity. The relevant University manuals relating to both geology and mining engineering, which were put to the plaintiff by Mr Read in cross-examination, demonstrate that he in fact probably had sufficient results at grade 12 level to permit him to undertake courses in those areas. Geology was available to him through the science degree in any event. In response to this questioning, the plaintiff described his decision-making at that time in the following terms:

[249]

Whilst I have no doubt that all of the plaintiff's academic undertakings and decision-making was influenced to some extent by the psychological effects of the sexual abuse, there was little specific evidence which linked his particular concerns and performance in mathematics to this cause. Of course, that is understandable, because he had not had the opportunity to demonstrate a capacity for advanced mathematics prior to the sexual abuse. Having said this, there is considerable conjecture and speculation involved in this question. It tends to reduce the likelihood of him undertaking the academic course necessary to permit the mining industry careers in any event.
There are further areas of speculation and uncertainty which need to be taken into account. Firstly, while I accept that his university studies were impacted to a greater or lesser extent from time to time by his injuries, he did ultimately achieve considerable academic success. This included the honours degree and two PhD's. There is a reasonable prospect that had he decided at a later time, to pursue subjects permitting entry into the mining careers, he would have reached a point where he was able to do so. There is no suggestion that he attempted this. Perhaps this was because of the continuation of his original concerns prior his first year at university, or perhaps it was never a serious option and he had long since abandoned any ambition in that regard, in favour of the academic path upon which he had actually embarked. I also accept Ms Norton's submission that there is little in the way of contemporary evidence to demonstrate that the mining industry was on his mind, or that he felt that he had been precluded from entry into it by the sexual abuse. There is no evidence from witnesses who knew him at that time, including Mr CD and his wife, that he spoke about his desire to pursue a career in the mining industry. It is not a matter that was raised during the 1994 negotiations that led to the settlement, despite his lawyer particularising his claim in correspondence to Daniel's lawyer during those negotiations. He does not seem to have raised this question with Dr Weissman when he first saw him for medico-legal purposes in 2018. Of course, he has demonstrated in his academic work a real interest in industry involvement, including in the mining industry, but within the context of his particular academic interest in business.
There is no question that had the plaintiff pursued a successful career as a geologist or mining engineer, in the career pathway described by Nicholas Barlow, it would have been possible to earn an income over his lifetime well in excess of that which he has actually earned as an academic. However, the assessment of the likelihood of this possibility also involves a number of inherent negative contingencies. Apart from the usual vicissitudes of life, it can reasonably be inferred from Mr Barlow's evidence that achievement of both success and relatively high earning rates in the mining industry requires a willingness to work for long periods of time in remote locations, often in other countries. Further, it seems that the nature of the industry requires considerable mobility, in the sense of a willingness to move from employment to employment. Little, if any, evidence was adduced to address the probability to be assigned to these contingencies in the case of the plaintiff.
Having regard to all of this evidence, I assess the chance that the plaintiff would have actually entered the mining industry in either of the stated occupations, and successfully conducted a career in that industry, as very low. This assessment also applies to the probability that the plaintiff would have had a higher earning capacity as a result. I would not assess the probability of this possibility at higher than 20 per cent.
The plaintiff adduced expert actuarial evidence from Corey Plover to address the question of the extent of financial loss arising from an inability to pursue a career in the mining industry. This evidence included an assessment of the plaintiff's actual earnings throughout his career as well as an estimate of what he might have earned had he entered the mining industry and achieved a reasonable of level of seniority within a reasonable period of time. Mr Read makes some criticisms of the calculation of actual earnings, based in particular on the omission of income earned by way of the honorarium from Reykjavik University. However, putting these criticisms to one side, Mr Plover estimated that the difference between the earnings actually achieved by the plaintiff during his career and those he would have earned as a mining geologist over a period between 1 July 1991 and 21 August 2022 is between $631,700 (based on earnings in the mining industry commencing at $40,000 per annum and increasing to $250,000) and $920,700 (based on the same period but with an increase to $350,000 per annum). Ms Whalan submits that Mr Barlow's evidence would support an assessment based on the proposition that after a significant time in the industry "the plaintiff's earnings would have risen to five hundred thousand to eight hundred thousand dollars per annum". I think this submission was based on Mr Plover's assessment of what Mr Barlow had said. What Mr Barlow in fact said in evidence was, when asked about the income range for a qualified geologist of 25 years' experience, who has moved into "more of a managerial role", that an income range of between $500,000 and $700,000 was possible, but this would include rewards in addition to base salary such as bonuses in the form of share options and, in any event, would be dependent on performance. In my view, for the reasons already noted these figures provide rough guidance but do not accurately reflect the actual loss arising from the impairment to the plaintiff's earning capacity.
The other aspect of past loss of earning capacity relates to delays, including in completion of university studies and academic promotion. The effect of the psychological injuries can be detected as a pattern running through the plaintiff's career. I refer in particular to evidence concerning his difficulties with older men, often manifesting in arguments and discord with superiors, leading to at least the suspicion that promotions were delayed or refused because of resultant interpersonal conflict. However, the plaintiff concedes that his interest and engagement in industry, in particular, as opposed to other forms of academic work more popular with university administrators such as research, has contributed to his slow progression through the academic ranks. Further, while it is possible to identify in the evidence specific instances where the plaintiff attributed an unsuccessful application for promotion to an argument with the relevant superior, there is in my view no evidence that permits this to be quantified in a reliable way. The final consideration is that care must be taken not to double count the loss arising in this respect with loss assessed on the basis that the plaintiff may have had a more lucrative career in another field. A more successful academic career would simply have reduced any gap arising between the alternative career and the academic career.
My conclusion in respect of past impairment of earning capacity is that there has been a significant and long term impairment of earning capacity, manifesting from time to time particularly in circumstances in which the effect of the psychological injuries sustained from the sexual abuse has impaired the plaintiff's functioning. Although this will have made the plaintiff's work harder and thereby increased his suffering as a result of the injuries, it will not always have been productive of financial loss. I find in a general sense that he has found it more difficult to progress in his career because of these injuries and further there is some, albeit relatively low likelihood that he may have entered a more lucrative profession and as a result earned greater income prior to trial. I do not think that either is capable of precise calculation.
I think that it is appropriate to adopt a broad brush approach to this assessment, taking into account the possibilities and the loss calculated on a maximum basis by Mr Plover. Doing the best that I can in the circumstances, I assess a global sum on account of past impairment of earning capacity at $350,000. This includes all aspects of financial loss, including loss of superannuation benefits.

[250]

In respect of future economic loss, the plaintiff's case is that but for the effects of the injuries he would have continued to work in his current occupation or similar in the academic field until the age of 67. However, the submission is that he has now reached the point where the psychological injury sustained by him as a result of the tortious conduct, has resulted in incapacity to work into the future, and retirement is his only reasonable option.
The plaintiff's evidence is that he has entered an extended period of depression and anxiety and, as a result, cannot cope with the demands placed on him by his current employment. He has, or is proposing, to give up his positions as the senior editor of the journal, and the honorary position at Reykjavik University. Both were productive of income. The contract in respect of his primary position as an assistant professor at UBC, and the related position as the Director of BRIMM, is due to expire in July 2024. The plaintiff's evidence is that he doubts that he will have the capacity to get through to that point, and if he does, considers that as a result of his psychological state, he will retire. The plaintiff's opinion is that once he leaves these positions, he is unlikely to work on a remunerated basis again. He pointed out that part time or casual work does not fit easily into the academic sector, and that it would be difficult to secure and maintain private consultancy work in industry. He also points to the stress involved in performing such work, which he believes would preclude him from undertaking that work on a sustained basis.
The plaintiff's evidence about his capacity to continue work into the future is largely consistent with the opinions expressed by Dr Weissman. In his 2022 report, Dr Weissman expressed the opinion that with or without further treatment, the plaintiff's prognosis for the future "is only fair, at the very best", and that notwithstanding any treatment that the plaintiff receives in the future "it is much more likely than not that his claim related psychiatric conditions and mental injuries are permanent and will last indefinitely". In evidence-in-chief, Dr Weissman expressed the opinion that although the plaintiff "may be able to perform partial duties in perhaps a less stressful type of consultancy role" he did not think that he could perform fulltime consultancy work. He also expressed the view that "it is highly unlikely that he is going to be able to continue through to July 2024" in respect of the UBC contract and his BRIMM director role. He thought it likely that he would continue trying, because of his inherent motivation and intellect, but explained that it was likely that his depressive symptoms would continue to deteriorate and this would affect his ongoing capacity for work. When he was asked to express an opinion as to the likelihood of the plaintiff working past his "late fifties", he said that he thought it was unlikely. Dr Weissman's opinion is that "the cause and the significant contributory factor" in respect of the symptoms which will affect his future capacity for work is the childhood sexual abuse.
The defendant's case is that I should find that the psychological consequences of the sexual abuse have not caused any significant future incapacity for work. The defendant submits that at the time of giving evidence at the trial, the plaintiff was affected by psychological symptoms including depression, but that this was an example of those symptoms coming in waves and that it should be viewed as him being in "the eye of the storm" at that time. It is submitted that I should conclude that he is likely to "bounce back" from this state, as he has in the past, and continue working in his current occupation or similar. The defendant relies on some promotional podcasts which were recorded in 2020, and in which the plaintiff expressed great enthusiasm for his work, particularly with BRIMM, which he described as his "dream job". He also expressed great optimism for the future. The defendant submits that the plaintiff will choose not to give up work and will proceed to perform the work enthusiastically and successfully until he chooses to retire for reasons unconnected with the injury sustained by him as a result of the sexual abuse.
In cross-examination, when dealing with questions related to the defendant's "eye of the storm" argument, Dr Weissman agreed that the existing court case was a factor in respect of the plaintiff's current psychological state, but went on to explain that in his opinion there had been a significant and permanent deterioration in that state since he first saw the plaintiff in March 2018. This is consistent with the view expressed in his report and evidence-in-chief concerning the plaintiff's prognosis.
In Medlin v State Government Insurance Commission, the High Court was concerned with the assessment of damages for future economic loss in respect of a university professor who had sustained injury as a result of a motor vehicle collision for which the defendant was liable, and had, by the trial, already made a decision to accept premature retirement. The trial judge had concluded that the premature termination of the academic appointment had not been caused by the injuries for which the defendant was liable. The predominant reason for retirement was the plaintiff's desire to devote more time to research "untroubled" by the requirements of his academic work, but that a subsidiary reason "was that, as a result of his own high standards, he believed he should retire for the reason that he was not performing at the level he thought desirable". His deficient performance resulted from the compensable injuries, in particular pain and sleeplessness and an associated loss of "intellectual energy". The trial judge determined the question of whether damages for future loss were payable by asking whether his decision "to retire early was reasonable". The plurality (Deane, Dawson, Toohey and Gaudron JJ) concluded that this was not the correct question. Their Honours said:

[255]

There are clear parallels between this case and Medlin, although the plaintiff has not yet given up work. Accordingly, this is a future possibility, the likelihood of which requires assessment in accordance with the principles explained in Malec v Hutton. While as I have already found, the plaintiff will continue to suffer from incapacity, it will only be if this is productive of financial loss that it will sound in damages. Accordingly, the two questions which require assessment are the likelihood that the plaintiff will cease work, fully or partly, prior to his anticipated retirement age of 67, and if so, whether this early termination or reduction in employment, if it occurs, will, as a matter of common sense and experience, be properly seen as having been caused by the tortious conduct for which the defendant is liable.
In this case, both questions are informed by my overall assessment of the plaintiff's evidence and the opinions expressed by Dr Weissman. As to the first question, I think that there is a high level of probability that the plaintiff will not renew his contract at UBC and BRIMM when it ends in July, and even if he does, will not work on a fulltime basis beyond the next few years. However, as Dr Weissman opines, the plaintiff will have the capacity to do some work, and having regard to my assessment of his personality, intellect and attitude, I think that there is a high probability that he will utilise this partial capacity for work from time to time. To some extent, he will be carried along by his passion for his work. While I do not think that much can be taken from the podcasts relied upon by Mr Read, in that they were clearly promotional exercises, there was some legitimate revelation of the plaintiff's passion for his work. I accept the existence of the difficulties with getting work in the future, either within academia or industry, as outlined by the plaintiff, but I also take the view that the plaintiff has built up strong industry contacts, and has the experience and expertise to attract consultancy work or similar. He has clearly made a point during his career of cultivating such work and contacts. I think it is likely that he will continue to work from time to time, and will have the capacity to do so but at a reduced level to that which he is currently undertaking.
As to the second question, I am satisfied that the partial incapacity for work in the future described above results from the psychological symptomology, which in turn is a consequence of the tortious conduct for which the defendant is liable. This is Dr Weissman's opinion, and in any event, it is, on the balance of probabilities, the conclusion which arises as "a matter of common sense and experience." It follows from my assessment of the trajectory of the plaintiff's life and the degree of intrusion of the psychological effects of the tortious conduct over time. It was clear to me that the effects of the sexual abuse and the subsequent response of the defendant, are never far from the surface of the plaintiff's consciousness, and remain raw and present in his day to day existence. His natural talent and psychological strength has enabled him to get this far in a relatively successful way in both his professional and personal life, but I have absolutely no difficulty with the concept that the cumulative effect of the impact of the wrongs done to him, will sooner or later get to the point where he will need to make major adjustments to life to be able to cope. I accept that this is why his capacity to work and earn income in the future, while not completely destroyed, will be significantly impaired.
Ms Whalan submitted that, on the evidence, an appropriate approach to the assessment of the extent of this impairment is to regard his earning capacity as completely destroyed from the likely time of complete retirement, which is age 58. I disagree. As I have already noted, I think that the plaintiff's natural aptitude, and passion for aspects of his work, will enable him to cope with part time work, and he is likely to do this indefinitely. I think that despite the practical difficulties he described, he will, with his experience and broad array of contacts, both in academia and industry, have the capacity to secure remunerative work on a part time basis. In my opinion, the more accurate way to assess damages for future loss of earning capacity, is to do so over the whole period between now and age 67, but on the basis that he will have a partial earning capacity over that entire period. I assess his residual earning capacity at 40% of his current income projected over the period to age 67.
There is, of course, also the need to take into account other positive and negative contingencies. On the negative side, there are the usual events, such as illness, mortality, injury and unemployment, which may have interrupted the plaintiff's future earning capacity in any event. On the positive side, there are the possibilities that the plaintiff would have obtained promotion, or have entered the mining industry some time ago and now be earning a much higher income than is currently the case. Mr Plover has compared various scenarios in his report. For reasons already given, I do not intend to attribute any significant degree of probability to the likelihood that the plaintiff would have been working in a mining industry career of the nature described by Mr Barlow. However, the possibility of ongoing promotion and increased income within academia is far more likely. In my view, the appropriate way to proceed is to equate the negative to the positive, so that they cancel each other out. the Accordingly, I will assess damages for loss of earning capacity in the future on the basis of 60% of the plaintiff's current income, calculated on the appropriate basis for the period between now and age 67.
The question of the plaintiff's current aggregate earnings was a matter of debate and somewhat imprecise evidence. Mr Plover produced calculations and tables, relying on assumptions contained within his instructions, and group certificates in respect of the University income. However, it seems to be common ground that he omitted some aspects of income, such as the Reykjavik University honorarium. Mr Read argued that other aspects of income were left out, including an honorarium payable to the plaintiff in his position of Deputy Head of School. In the end, Ms Whalan came up with an aggregate gross figure of $285,000, and Mr Read $260,000. Neither of these figures were the subject of calculation by Mr Plover which, in this respect, rendered his evidence somewhat redundant.
In the end, I am satisfied that the need for me to make a judgment, rather than a precise calculation, concerning the question of future economic loss does not require absolute precision. I prefer Ms Whalan's calculation, and will adopt a figure of $3,500 per week, which is the result after deduction for tax, as the basis for the calculation of future earning capacity. It is common ground that the appropriate discount rate is 3%. The multiplier over 13 years, from 2024 to age 67 is 563.2. Using the weekly sum of $3,500 the calculation produces a result of $1,971,200. Sixty per cent of this is $1,182,720. This is the sum I assess as damages for loss of earning capacity in the future.

[257]

The plaintiff's claim for past medical and associated expenses is particularised as a past need for psychiatric and psychological treatment. The claim for expenses which the plaintiff has incurred as out of pocket expenses includes those which have been paid through Medicare in accordance with a valid notice of charge, expenses paid through private health insurance in respect of which there is a notice of past benefits, amounts paid by the plaintiff, including three gym sessions per week at a cost of $99 per session, and any medication and unpaid expenses. There is no further particularisation in the particulars, but rather a statement that the plaintiff "estimates a global figure of $10,000 for general practitioner treatment, psychiatric treatment and past out of pocket expenses". There has been no specific evidence provided by the plaintiff to support the claim for out of pocket expenses.
There is ample and unchallenged evidence that the plaintiff received, and presumably paid for, a significant amount of psychological and some psychiatric therapy arising from symptoms confirmed by Dr Weissman to be attributable to the sexual abuse. This included ongoing psychological therapy with Christine Clifford which seems to have commenced in 1994 before the settlement and continued until 1996. After the plaintiff's move to Queensland, he had several sessions with a male psychologist. This treatment took place in 2005, and he saw the psychologist six or seven times. He then saw another psychologist, Narelle Dickenson, and undertook EMDR treatment for the first time. He recommenced this treatment with Ms Dickenson in 2017 and was still receiving this treatment when he saw Dr Weissman for the purpose of his first report in 2018. He had clearly sought medical assistance from a GP before seeing Dr Weissman and told him that he has been prescribed pharmaceutical medication. In 2017, he commenced taking Pristiq and has continued to do so since then. In 2022, he commenced taking Wellburtin, which he continues in addition to the Pristiq.
In a statement which the plaintiff made to the Royal Commission on 21 January 2016, he said that "the money from the settlement enabled me to get psychological help. There have been times when I have definitely needed it". He confirmed the truth of this statement in cross-examination. His evidence about this was not challenged and I accept it. I infer from that statement that he incurred actual cost in respect of some of his psychological therapy. There is also some imprecise evidence that it was partly met from Medicare, pursuant to mental health care plans provided by a general practitioner.
I conclude, therefore, that the plaintiff has undertaken a considerable amount of medical treatment and psychological therapy as a result of the tortious conduct for which the defendant is liable. I find that the plaintiff has actually incurred some cost in respect of that therapy, but the evidence is insufficient to enable me to calculate that cost with precision. Of course, this does not relieve me from the responsibility to assess damages where there has been actual compensable loss.
Accordingly, doing the best I can on the evidence presented to me, I accept that the plaintiff's compensable therapy and medication has continued from time to time over several years. I accept the plaintiff's argument that $10,000 is a conservative estimate for such expenses. It is approximately one third of what the plaintiff recovered from the 1994 settlement. I will allow past medical and associated expenses in the sum of $10,000.

[258]

Again, the plaintiff's claim under this head is contained in its particulars. There is a claim based on a future need for fortnightly sessions with a psychologist over a period of two years, an ongoing claim for the cost of medication on a permanent basis, and a claim for the cost of consultations with a psychiatrist for advice and review of psychotropic medication, again on a permanent basis. The claim is particularised and discounted over relevant periods at a discount rate of 3%. The total claim is $71,711.
The claim is consistent with the evidence of the need for future treatment contained in Dr Weissman's reports and/or evidence. The defendant accepts that there is a need for ongoing medical treatment. As to the calculation contained in the particulars, Ms Norton submitted that there is no evidence to identify the cost of providing that treatment while the plaintiff remains in Canada. The particulars are based on costs identified for provision of the treatment in Australia. Further, counsel submits that there is evidence to suggest that while in Canada, the plaintiff may be entitled to secure all of the treatment under a public health care system.
It is true that the claim is based on the cost of provision of the treatment in Australia, and not Canada. Neither party has adduced evidence concerning the commensurate cost in Canada. In assessing damages under this head, it is necessary for me to make an assessment of what will be the reasonable cost of providing the treatment into the future. I have no difficulty in finding that the cost in Australia is an appropriate basis for calculation. I think it is highly improbable that the cost of private provision of these services in Canada would be significantly less than the commensurate cost in Australia, and further there is a real possibility that the plaintiff may well return to Australia at some time in the near future in any event.
The defendant's submission that the cost of future medical treatment can be met by some form of public insurance scheme in Canada is based on evidence provided by the plaintiff's wife, Kelly Steen, in cross-examination. However, this proposition was not put to the plaintiff during his extensive cross-examination. In respect of Mrs Steen's evidence about this, Ms Norton put to her in cross-examination that as the plaintiff and she were permanent residents of Canada, they were "entitled to local health care benefits under the medical services plan, is that right?" She agreed with this, referring to the plan as "MSP". There was a further question about whether this plan entitled a permanent resident to "public health care" to which Mrs Steen agreed. That was the end of that evidence, and no further detail has been provided to me concerning the nature of the entitlement, whether it is subject to repayment in the event of a damages claim and provided conditionally on that basis, whether it will cover the type of treatment that the plaintiff will require in the future, and generally whether there are any other conditions or limitations concerning that health care system. I am not even clear as to what knowledge or expertise Mrs Steen had about this issue. In my view, it is reasonable that the plaintiff be entitled to compensation which will ensure that he can access the psychiatric, psychological and pharmaceutical support that he needs, without reliance upon a public health care system about which I know virtually nothing. He has not claimed the cost of future GP visits. I am satisfied that the claim made and particularised in the particulars is a reasonable one. I allow damages for future medical and associated expenses in the claimed sum of $71,711.

[262]

The third case is a decision of Porter AJ in Public Trustee as Administrator of the Estate of Matthew Leonard v Atielo [2023] TASSC 33. I will return to this decision shortly.
In my view, there is no question that an award of interest on some components of past loss is appropriate. The real issue, which is encapsulated in the debate between the parties, concerns the date from which that interest should be calculated, and this incorporates an issue concerning the retrospectivity of s 35A. The plaintiff submits that interest should be calculated retrospectively. Accordingly, it is submitted, in respect of past loss of earnings, the calculation should be made from 1993 and calculated at 4% per annum. It is further submitted that in respect of the three heads of damages of non-economic loss, the claim for interest should be calculated from the date of accrual of the cause of action.
The defendant submits that interest should not be awarded at all, given that prior to the changes in law, the defendant "had no reason to contemplate an award of interest". Further, it is submitted that it should not be considered in respect of the claim of exemplary damages because the award of interest is intended to be compensatory and not punitive.
In Dann, Wood J concluded that it appeared from the terms of s 35A with "reasonable certainty" that a retrospective power was intended. Blow CJ agreed with this in ZAB v ZWM, relying in particular on the words "for the whole or any part of the period commencing on the day after the day on which the cause of action arose and ending on the day on which the judgment is entered". This is also consistent with decisions in other jurisdictions. For example, French J (as he then was) found to that effect in respect of comparable legislation in Western Australia in Nella v Kingia Pty Ltd [1989] FCA 142. His Honour's determination was approved by the Western Australian Court of Appeal in Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77.
In ZAB v ZWM, the Chief Justice relied on this finding to award interest to the plaintiff calculated in effect from the date of accrual of the cause of action. However in Dann, Wood J's conclusion that the operation of the section applied retrospectively was not the end of her Honour's analysis of the date from which the interest calculation should be made. In particular, her Honour went on to consider the exercise of discretion in respect of the appropriate award. In this regard, her Honour concluded, after analysis of authorities in other jurisdictions, that having regard to the consideration that the purpose of pre-judgment interest is to achieve fairness and complete justice between the parties, it would be unfair in the circumstances of the case to award interest calculated prior to the commencement of s 35A. In coming to this conclusion, her Honour considered that a significant factor affecting the exercise of discretion was the reality that prior to the commencement of the section, the defendant had no notice of its potential liability with respect to interest. In this regard, reliance was placed on a decision of the Court of Appeal of New South Wales in Simonious Vischer & Co v Holt [1979] 2 NSWLR 322, and in particular a view expressed by Moffitt P in respect of comparable legislation in that jurisdiction as follows:

[268]

On the other hand, as I have already noted, in ZAB v ZWM, a case dealing specifically with childhood sexual abuse, Blow CJ considered that the inability of the plaintiff to commence proceedings until changes in the law permitted that to occur, was the critical factor in the exercise of discretion in that case. The relevant changes in the law were the abolition of limitation periods in respect of childhood sexual abuse, which were enacted by s 5B of the Limitation Act which commenced on 1 July 2018. However, ZAB v ZWM was not a case which involved setting aside a prior settlement.
In the case before me, there are some further factors which may affect the exercise of discretion. In particular, this is the first case in this State involving setting aside a prior settlement under s 5C of the Limitation Act. The plaintiff was not able to bring an application to set aside the previous settlement until s 5C commenced on 1 May 2020.
I agree with Blow CJ that the inability of the plaintiff to bring an action until changes in the law is a significant factor affecting the exercise of discretion. Of course, in this case, the plaintiff was able to bring an action in negligence. The plaintiff did commence negotiations with the view to bring such an action in 1994 and this resulted in the settlement which has now been set aside. Complicating the issue is that the setting aside of the prior settlement in part relied upon the oppressive conduct of the defendant. An arguable position is that the setting aside of the deed means that it should be ignored in determining the question of the date from which entry should be calculated. This is particularly so given that the defendant did not contribute to the settlement sum. On the other hand, the defendant did, at least, engage in settlement negotiations, and obtained a lawful release from liability. From that time until the law permitted the deed to be set aside, the defendant had no reason to think that it would be liable in respect of a further claim at all, let alone a claim which bore interest.
Ultimately however, in my view, there is considerable weight in the authority cited above which considers that justice to both parties, including the defendant, means that there is general unfairness in calculating interest on a period which preceded the commencement of s 35A. I am persuaded by and rely on these authorities, and I see no reason in this case to adopt a different position. Of course, in the majority if not all of those cases, the proceedings were extant when the law permitting pre-judgment interest to be claimed came into effect. In this case, the plaintiff commenced his action three months after the commencement of s 35A. In my view, there can be no question that from the commencement of the action on 9 December 2019, the plaintiff has been kept from money to which he was lawfully entitled at that time. Accordingly, it is appropriate to calculate pre-judgment interest from the date of commencement of the action on the whole amount of damages awarded for past economic loss. In respect of damages for non-economic loss, I accept Mr Read's argument concerning exemplary damages. I would not award interest in respect of that head of damage, but will award it in respect of the whole amount of the general component for non-economic loss and aggravated damages.
In respect of the relevant rate, I intend to adopt the position of both Blow CJ and Wood J, and calculate interest on a simple basis at 4% per annum. Had I been calculating from an earlier date, I may well have reduced this rate to account for the fact that the damage reflected loss of earnings and non-economic loss which accrued throughout that lengthy period. This would seem to be consistent with the approach adopted in other jurisdictions. However, given the date chosen by me, the commencement of the action, it seems to me that there is a strong argument that the whole of the damages became payable then, and the plaintiff is to be compensated for the fact that he has been kept from that money from that time. In my view, the rate of 4% per annum on the whole of each sum provides him with the appropriate amount of compensation.

At a glance

Court

Decision date

Before

Source

Judgment (274 paragraphs)

Steen v Trustees of the Diocese of Tasmania [2024] TASSC 3 (15 February 2024)

Parties

Legislation Cited (5)

Cases Cited (14)