Brockhurst v Rawlings
[2021] QSC 217
•27 August 2021
SUPREME COURT OF QUEENSLAND
CITATION:
Brockhurst v Rawlings [2021] QSC 217
PARTIES:
NICHOLAS BROCKHURST
(Plaintiff)
v
MEREDITH LYNNE RAWLINGS(Defendant)
FILE NO:
7248 of 2018
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
27 August 2021
DELIVERED AT:
Brisbane
HEARING DATE:
3-12 March 2021, 18-19 March 2021, 24 May 2021
JUDGE:
Ryan J
ORDER:
Judgment for the plaintiff in the sum of $1,443,459.06.
I will hear the parties as to costs.
CATCHWORDS: TORTS – INTERFERENCE WITH THE PERSON – TRESPASS TO THE PERSON – GENERALLY – where the plaintiff was a student and the defendant was his teacher – where the plaintiff alleges that the defendant sexually abused him – where the plaintiff claims damages from the defendant for personal injury, in trespass, by battery
DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – GENERALLY – where the plaintiff was displaying behaviours consistent with oppositional defiant disorder before the alleged sexual abuse occurred – assessment of quantum of damages to be awarded – whether exemplary and aggravated damages should be awarded
B v Reineker [2015] NSWSC 949, considered
BDT v BDG [2019] QDC 74, cited
Briginshaw v Briginshaw (1938) 60 CLR 336, cited
Browne v Dunn (1893) 6 R 67, cited
Dare v Pulham (1982) 148 CLR 658, cited
Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181, cited
Longman v The Queen (1989) 168 CLR 79, cited
Mark Bain Constructions Pty Ltd v Avis; Mark Bain Constructions Pty Ltd v Barnscape Pty Ltd [2012] QCA 100, considered
Mount Arthur Coal Pty Ltd v Duffin [2021] NSWCA 49, considered
P v R [2010] QSC 139, considered
WAQ v Di Pino [2012] QCA 283, citedCOUNSEL:
Mr B Dooley SC and Mr A Harris for the Plaintiff
Mr S MacDonald for the DefendantSOLICITORS:
Shine Lawyers for the Plaintiff
MacDonald Law for the Defendant
Table of Contents
OVERVIEW
PART A PRELIMINARY MATTERS
Consent…………………
The presence of oppositional defiant disorder in the plaintiff before the abuse
Causation…
Failure of the defendant’s counsel to comply with “the rule in Browne v Dunn”
PART B THE PLAINTIFF’S EVIDENCE IN CHIEF
The plaintiff’s account of his grooming and seduction
Meeting Mrs Rawlings
Relationship over semester 1, 1996
Relationship over semester 2, 1996
“Proper” hugs
First kiss……
Relationship over the December/January school holidays
Relationship over semester 1, 1997
Farm visit…
Relationship after Easter 1997
April 1997…
Intimate touching
Visits to Mrs Rawlings’ house
First occasion of sexual intercourse
Mr Brockhurst’s parents found the defendant’s correspondence
Fellatio……
Other occasions of sexual intercourse
Mrs Rawlings left TGS
The plaintiff left TGS
Mrs Rawlings’ notes
The plaintiff’s perception of the change in his behaviour during his relationship with Mrs Rawlings….
The aftermath of the abuse
Schooling / personality after the abuse
Post-school employment and relationships
Emotional aftermath of, and psychological treatment for, the sexual abuse
The plaintiff’s occupational plans
PART B CROSS-EXAMINATION OF THE PLAINTIFF
Inconsistency generally
Applications to the Defence Force
Past trauma contributing to the plaintiff’s symptoms
Plaintiff’s statements to Dr Chalk about what he told Dr Scott
“Bad” behaviour
Cross-examination about the plaintiff’s motive for his claim
Lack of opportunity
PART C THE DEFENDANT’S EVIDENCE
Overview…
1996………
1997………
April 1997…
The rugby carnival
The June/July 1997 holidays
The complaint to the school and contact with Mrs Brockhurst thereafter
Lack of opportunity
PART D CECILY BROCKHURST
PART E EVIDENCE WHICH PROVIDED SUPPORT FOR THE PLAINTIFF’S ACCOUNT OF ABUSE
Notes of statements made by TGS students
Donald McConnel’s evidence
Derek Ranclaud’s evidence
Stewart Selby’s evidence
Geoff Seccombe
Owen Brockhurst
Cecily Brockhurst
The notes which Mrs Rawlings sent to Mr Brockhurst
The note about the rugby carnival (exhibit 23)
The lyrics to Celine Dion’s “Seduce Me” (Exhibit 24)
Fax about returning “the stuff” (exhibit 19)
Fax sent 3 July 2019 from Encores Restaurant (exhibit 20)
The little yellow notes
The note thanking Nick for the parcel (exhibit 22)
Written statements of the defendant (apart from correspondence sent to the plaintiff)
Written statement of the defendant to Mr Buttenshaw
Written statement of the defendant to Mr Rose
Notes of telephone conversation with Mrs Rawlings
PART F THE CROSS-EXAMINATION OF THE DEFENDANT
PART G OTHER WITNESSES FOR THE DEFENDANT
Mark Rawlings
Lynettte O’Sullivan and Ian Young
PART H OTHER MATTERS ADVERSE TO THE DEFENDANT’S CREDIT
PART I WHETHER THE DEFENDANT SEXUALLY ABUSED THE PLAINTIFF
Defendant’s submissions
Observation on quality of submissions
The plaintiff’s credibility
Inconsistency
Delay………
Lack of corroboration
Inherent unlikelihood
The correspondence
The plaintiff’s “fantasy”
The plaintiff’s mental health issues
Risk/lack of opportunity/implausibility
The plaintiff would have been in trouble if he was out of bed at 9.30 pm
No evidence that the defendant was a paedophile
No evidence that the defendant had sexually abused other boys
Other reasons why the evidence of the defendant ought to be preferred
Other observations on the defendant’s submissions
Conclusion…
PART J EXPERT PSYCHIATRIC OPINION
Dr Leong 2015
Dr Evans 2017
Dr Chalk 2019
Dr Chalk 2019
Dr Evans June 2019
Dr Evans September 2019
Dr Evans 2021
Dr Evans – oral evidence
Dr Chalk – oral evidence
PART K – PERSONAL INJURY; CAUSATION
Plaintiff’s submissions
Defendant’s submissions
Consideration of submissions
PART L QUANTUM
General damages
Interest on general damages
Economic loss
Past economic loss
Future economic loss
Discount for vicissitudes
Loss of future superannuation
Out of pocket expenses and future treatment.
Aggravated damages
Exemplary damages
Set-off……
Total award
Costs……..
Corrigendum
OVERVIEW
Meredith Rawlings, a teacher, seduced her student, Nicholas Brockhurst. Her relationship with him began when he was 13 years old, in his first year of high school. He became infatuated with her. They had sexual intercourse when he was 14.
Mr Brockhurst’s parents found notes from Mrs Rawlings to their son which were affectionate and loving. Without fully appreciating all that had gone on between Mrs Rawlings and Nicholas, they raised concerns about her with the school. After being questioned by the Headmaster about Mr Brockhurst, Mrs Rawlings tendered her resignation and ended their relationship. Mr Brockhurst was devastated.
Having struggled for years in the aftermath of his relationship with Mrs Rawlings, Mr Brockhurst now claims damages from her for personal injury, in trespass, by battery. The tort of battery is committed when one person intentionally makes contact with another in a harmful or offensive way. Personal, intimate or sexual contact, without voluntary consent, is offensive contact.[1] At 13 or 14 years of age, Mr Brockhurst was unable to voluntarily consent to Mrs Rawlings’ intimate and sexual contact with him. Thus, her intimate and sexual contact with him amounted to a series of batteries (“sexual abuse”).
[1]Because of the approach of the parties, I did not need to decide whether “lack of consent” was an element of the tort of battery or whether “consent” was a defence to the tort (to be proved by the defendant).
I found that Mrs Rawlings’ sexual abuse of Mr Brockhurst caused him personal injury, including a depressive disorder. He has suffered economic and non-economic loss because of her abuse of him. I award damages to him in the amount of $1,443,459.06.
My reasons follow.
PART A PRELIMINARY MATTERS
The plaintiff alleged that his relationship with the defendant was romantic, intimate, and sexual.
The defendant admitted to being too close to the plaintiff and allowing him to become too dependent on her. She said their relationship was “complicated”, with “fuzzy” boundaries. But, she said, the plaintiff’s evidence that it was romantic, intimate or sexual was a fantasy that he convinced himself was true.
The primary issue for me was the nature of the relationship between Mrs Rawlings and Mr Brockhurst. To resolve it, I was required to evaluate the truthfulness and reliability of the plaintiff’s account in the face of the defendant’s adamant denial of it. Bearing in mind the onus of proof, the standard of proof, the seriousness of the plaintiff’s allegations, and that almost 25 years had passed since the plaintiff was 14, I scrutinised his evidence in great detail.
Consent
Mr Brockhurst welcomed and enjoyed Mrs Rawlings’ physical contact. But he was only 13 or 14 at the time.
Mrs Rawlings has not been charged with criminal offences. Mr Brockhurst chose to pursue Mrs Rawlings in tort, rather than complain to police about her conduct.
The defendant agreed that Mr Brockhurst was not able to voluntarily consent to conduct which, if proved, amounted to criminal offences because of his age, if not also because of the power imbalance in his relationship with Mrs Rawlings, and her grooming of him.
The defendant accepted that, if I found that there had been intimate or sexual contact between the parties, then I would find that there had been battery (or more accurately, one battery per intimate or sexual contact).
The presence of oppositional defiant disorder in the plaintiff before the abuse
The matter proceeded on the basis that the plaintiff was displaying behaviours consistent with oppositional defiant disorder (ODD) before he was groomed and seduced by the defendant.
Causation
I was troubled by the defendant’s counsel’s admission, made as late as day 5 of the trial, that he had not “finally turned [his] mind” to the issue of causation. He was not then able to tell me whether he intended to suggest that any of the symptoms of psychological distress manifested by the plaintiff were the result of issues he had around his adoption (which had been the subject of the defendant’s counsel’s cross-examination that day).
On day 8 of the trial, I asked the defendant’s counsel how he intended to use the fact that the plaintiff was exhibiting conduct consistent with ODD before it was alleged that his relationship with Mrs Rawlings commenced. Counsel said that the “main thrust” of his approach was that it was a “pre-existing condition”. I asked him whether he intended to ask questions of the psychiatrists designed to establish that the “greater causal component” of the plaintiff’s psychological distress was ODD. Counsel said, “No. Not really”.
I pushed the defendant’s counsel further. Ultimately, his position on day 8 was that the issue for me on causation was resolved by my decision on the facts: that is whether I accepted the plaintiff’s evidence about the defendant’s relationship with him, or not. The defendant’s counsel said, “if the events occurred as alleged, then, of course, it becomes the – probably the dominant cause of his conditions”.[2] However, the defendant’s counsel appeared to retreat from this position during his closing submissions.
[2]Transcript 8 – 14, lines 26 – 32.
In his closing written submissions, under the heading “General Damages”, the defendant’s counsel asserted that: “Because of the other conditions suffered by the plaintiff, it is submitted that the award of general damages ought to be reduced to take into account those matters”. During his oral closing submissions, the defendant’s counsel said that the defendant’s case was that the sexual abuse did not occur and that the plaintiff’s psychological injuries were the product of other “matters”. The defendant’s counsel submitted that those other matters included not just ODD, but also unnamed or unidentified “organic conditions”.
When I asked the defendant’s counsel where I might find evidence that the plaintiff suffered from “organic conditions”, he told me I could take “judicial notice” of them. He developed that argument in the following way. In 1997, the plaintiff was referred to a psychiatrist, Dr Scott, after his parents raised their concerns about the defendant with the school. Counsel for the defendant submitted that I would conclude that the plaintiff was not referred to Dr Scott because he had been sexually abused – rather, I would conclude he was referred for treatment of his “organic conditions”. Counsel submitted –
If the plaintiff’s referral was for either bad behaviour or as a result of some trauma, including sexual abuse, it would be usual for the referral to be to a psychologist, rather than a psychiatrist.
Psychiatrists usually treat organic conditions. Therefore, it is more likely that the plaintiff was being treated for his own organic conditions, not as a result of some trauma [that is, sexual abuse].
That proposition was not put to any of the psychiatrists for their comment. When I asked the defendant’s counsel for the evidential foundation for the submission, he said –
Well, your Honour, I submit that that is also something that judicial notice would be taken of. That is, in my experience, the usual course: that one would be referred by a GP to a psychologist initially …
Ultimately, counsel conceded that there was no evidential foundation for his submission that I ought to conclude that the plaintiff was referred to Dr Scott for treatment of an “organic condition”. But he persisted with the submission that “there may be other issues” which had not been brought before the court.
I pushed further for clarification of the relevance to the defendant’s case of ODD and the unrevealed “other” things. Counsel confirmed that the defendant’s position was that I ought not to reason back from the plaintiff’s presentation to the psychiatrists that he had been sexually abused by the defendant.[3] I was not convinced that that was in fact the defendant’s position. So, I considered the evidence (limited though it was) about the potential contribution of ODD to the plaintiff’s psychiatric injures, for the benefit of the defendant.
Failure of the defendant’s counsel to comply with “the rule in Browne v Dunn”
[3]Transcript 11 – 23 lines 34 – 42.
Although I reminded the defendant’s counsel several times during the trial of the need to comply with the rule in Browne v Dunn, there were many occasions on which he did not comply. There is nothing to be gained by my itemising here the allegations in the defendant’s case which were not put to relevant witnesses for their comment. It is enough to say that the defendant’s counsel’s failure to comply with the rule in Browne v Dunn did not assist me in the assessments which I had to make.
PART B THE PLAINTIFF’S EVIDENCE IN CHIEF
The plaintiff’s account of his grooming and seduction
Nicholas Brockhurst grew up on a property at Drillham, 20 kilometres west of Miles, a town in the western Darling Downs. His parents, Cecily and Owen, adopted him when he was very young. They also adopted his sister.
He attended the local primary school with another 30 or so children across Years 1 to 7.[4] In 1995, he was one of four Year 7 students.
[4]When Year 7 was the final year of primary school.
Mr Brockhurst turned 13 in January 1996.
He started high school (Year 8) at Toowoomba Grammar (TGS). He was a boarder, assigned to Mackintosh House. He understood that Mrs Rawlings was there to “look after” the boys in Years 8 and 9 of Mackintosh House. She was also Mr Brockhurst’s Year 8 English teacher.
Meeting Mrs Rawlings
As Mr Brockhurst recalled it, within a couple of weeks of starting Year 8, he saw Mrs Rawlings for tutoring/help with his homework about twice a week. He saw her, with other boys, in her classroom under the library. The assigned times for tutoring were communicated to him (and the other boys) by their “housemaster” or by Mrs Rawlings herself. The tutoring times for Years 8 and 9 fell between the end of the school day, at around 3 pm, and 5.30/5.45 pm, at which time the boarders had to get ready for dinner. The older students were tutored after dinner.
Mr Brockhurst found Mrs Rawlings very friendly. She seemed to care about his schoolwork and how he was progressing. He felt very comfortable with her. By the middle of 1996, he felt that they had grown “closer”. Their conversations were not all about schoolwork. They spoke to each other about their personal life and their backgrounds. They were “getting to know each other”.
Relationship over semester 1, 1996
Mrs Rawlings offered extra tutoring sessions to Mr Brockhurst. As Mr Brockhurst saw it, they enjoyed their time together so much that they sought more of it. Most of the time the extra sessions were arranged by Mrs Rawlings paging Mr Brockhurst, over the loudspeaker, to attend at the school office during lunchtimes or after school. She would then meet him there and pass a note to him which invited him to attend her room at a certain time.
Mr Brockhurst played cricket in the first term of 1996. Mrs Rawlings came to watch his games. He opened the batting for his team. Once he was dismissed, he was permitted to return to the crowd which consisted of parents, teachers and other supporters. He often sat with Mrs Rawlings in the crowd but there was no physical contact between them.
Mr Brockhurst played rugby in the second and third terms of 1996 (from April until September). Mrs Rawlings often attended his games. Once he finished playing, they found time to be together – even if only for ten minutes.
By the end of semester 1 of 1996, Mr Brockhurst saw Mrs Rawlings for tutoring nearly every day, but very little academic work was done. Mr Brockhurst could not remember much about what Mrs Rawlings told him about her personal life – only that her husband Mark was a chef and that she had not long finished university (she gave evidence that she completed her Master’s Degree in Education in 1996). She also spoke to him about her parents. Their conversations were very friendly, like Mr Brockhurst had known Mrs Rawlings for a long time.
Relationship over semester 2, 1996
By semester 2 of 1996, Mr Brockhurst was paging Mrs Rawlings so that he could pass notes to her. Sometimes they exchanged notes. This practice of paging one another over the loudspeaker continued until Mrs Rawlings resigned.
In semester 2 of 1996, Mrs Rawlings and Mr Brockhurst saw each other almost every weekday. The time they spent together each day would depend on Mr Brockhurst’s commitments. If he had after school sport, he might only see her for 30 minutes. Otherwise, he would see her for about two hours, until dinner time.
By about September 1996, the tone of Mrs Rawlings’ notes changed and they included phrases like “I miss you”. Sometimes, but not often, Mr Brockhurst added to his notes something like “I miss you as well”. He sent his first note of that kind about a week after Mrs Rawlings’ first “I miss you” note. His note prompted an “I miss you more” response from her.
In about September of 1996, Mrs Rawlings gave Mr Brockhurst her home phone number on a note which said, “Call me whenever you like”. Thereafter, he called her at home, at first about twice a week and then later, on average, four times a week. He called her on days he did not see her. They spoke on the telephone about personal things including about how Mr Brockhurst was finding school, their home lives and sport. He recalled that she told him that her husband worked at a restaurant at the top of the Toowoomba Range. He would ask about her and her husband’s “project” (opening a new restaurant called “Encores”). At the end of their phone calls, sometimes, one would say to the other “I will see you tomorrow because I miss you” or “I will see you tomorrow because I want to talk to you”.
If he called her during the school week, he would call her in the evening from one of the two public phones available to the Mackintosh House boarders. The Year 8 boarders had to be in bed by 9.45 pm, with “lights out” at 10 pm. Mr Brockhurst’s calls to Mrs Rawlings would sometimes last more than an hour, and sometimes beyond “lights out”. The more lenient supervisors would allow him to remain on the phone after lights out. The stricter ones would hang up the call. He was often in trouble for being on the phone. Sometimes the calls would be cut short because other boarders “kicked” him off the phone. Mostly, Mrs Rawlings answered his calls. Occasionally, her husband did.
“Proper” hugs
Towards the end of 1996, “things changed” and “got a bit physical” when they were alone in Mrs Rawlings’ room. It began with Mrs Rawlings patting Mr Brockhurst on the shoulder and transitioned quickly to what Mr Brockhurst called “proper hugs”. He could feel Mrs Rawlings “holding on” during the hugs. She would also rest her hand on his shoulder or leg including at the top of his thigh.
When they were together, Mrs Rawlings would ensure that the roller blinds to the windows of her room were drawn to a level which stopped people looking in, but which allowed her and Mr Brockhurst to see whether anyone was walking by (through a gap between the bottom of the blind and the bottom of the window frame).
The older boarders began to call Mr Brockhurst “the chosen one”; “the special one” and “teacher’s pet”. He was receiving notes from Mrs Rawlings almost daily, telling him that she missed him a lot or that she could not wait to see him; or asking whether he had a game on that she could come and watch; or inviting him to stay a bit longer after a tutor group. She would add to her notes a “little footnote” which said “I miss you” or something similar. Mrs Rawlings signed her notes “MLR” and often with an “xxoo”. In the notes Mr Brockhurst wrote to Mrs Rawlings, he thanked her for being kind to him. He told her that he was very happy that he knew her; she made him happy; and he liked her a lot.
If Mr Brockhurst was invited to see Mrs Rawlings after a tutor group which involved only a small number of boys, he would enter the room and wait until the group was finished to spend time with her. He would not enter the room if she was tutoring a large group. He would wait until the group left.
The boarders had a roll call before dinner. Sometimes, Mr Brockhurst would leave Mrs Rawlings to attend roll call and then skip dinner to return to her.
By the end of 1996, Mr Brockhurst was beginning to see himself and Mrs Rawlings as a couple. When they were together, they smiled and laughed a lot. They often “hugged” in her room in a way in which Mr Brockhurst felt “meant something”. He still called her “Mrs Rawlings”.
First kiss
Mrs Rawlings kissed Mr Brockhurst for the first time towards the end of 1996. Their first kiss was on a Saturday. She was at the school, in her room, at 5 pm. She may have been coaching sport earlier than day. They had organised to meet, by a note which also said, “I miss you”, the day before. While they were sitting together, laughing and smiling, they hugged (which Mr Brockhurst thought was “great”). Then Mrs Rawlings lent forward and kissed Mr Brockhurst on the lips. The kiss lasted about 15 seconds. His mouth was not open. He was “shocked in a good way”. They were silent after the kiss.
There were then other occasions of kissing. Mr Brockhurst estimated that they kissed about 12 times before the end of year school holidays. They kissed in Mrs Rawlings’ room but more often in her car, which she parked at the school. On occasions, they kissed with open mouths and tongues. Mr Brockhurst felt “ecstatic”. He said, “I was a 13-year-old boy being kissed by an adult and I thought I was amazing”.
As to how Mr Brockhurst came to be in Mrs Rawlings’ car, he explained that, by the middle of 1996, neither wanted their tutoring sessions to end. As he said, “I didn’t want her to go home and she didn’t want to go home but she clearly had to. And I’d … walk out into the carpark with her. Just dawdle out there with her, sit in the car with her in the front seat and spend another 10 minutes with her. That was not unusual.”
He walked Mrs Rawlings to her car when it was dark and there was no occasion then for the boarders to be around the car parking spaces. Touching (though not on the breast or genitals), hand holding and hugging accompanied kissing in the car in 1996.
Relationship over the December/January school holidays
Mrs Rawlings and her husband planned to holiday in Europe at the end of 1996. She told Mr Brockhurst that she wished he could come with her. She told him that she would write to him often. Mr Brockhurst was “over the moon” about that. By this time, the notes they exchanged normally contained phrases like “I miss you” or “I want to see you”.
Mr Brockhurst went home to his family’s farm for Christmas. Mail was delivered to the Drillham Post Office in the first instance. Then, twice a week, it was delivered to its recipients. Mr Brockhurst could not wait for the mail delivery to his farm. Instead, he would ride his bicycle to the post office to see if there was any mail for him from Mrs Rawlings.
Mrs Rawlings sent him postcards every few days. He remembered one in particular. It was from Salzburg. It read, towards the bottom, “It’s very cold here Nick. I wish you were here next to the fire with me. xxoo MLR”.
She telephoned him once from overseas. He remembered that call because she ended it by telling him she had to get off the phone because it was costing a fortune. There was a fax machine at Mr Brockhurst’s parents’ farm. Sometimes, over the holiday period, Mrs Rawlings sent faxes to Mr Brockhurst. Her notes, faxes and the phone call included sentiments like “I miss you”; “I’m thinking of you” or “I wish you were here”.
Mr Brockhurst turned 14 in January 1997.
Relationship over semester 1, 1997
At the beginning of the 1997 school year, Mrs Rawlings invited Mr Brockhurst to call her “Meg” when others were not around. Mr Brockhurst felt their relationship was stronger after all of Mrs Rawlings’ correspondence to him from Europe. They spent even more time together, and each told the other than they adored them; or really liked them; or really missed them.
Farm visit
Around Easter of 1997, Mr Brockhurst decided that he would like Mrs Rawlings to see where he lived on the farm. He explained that he “thought [they] were going somewhere and it was like a relationship nearly at that stage and I wanted her to know more about me, my background, my family, where I came from, what I know”. He told Mrs Rawlings that he wanted to show her his farm. He could not remember whether she took much convincing, but it was arranged that she would spend a weekend with him there.
They left on a Friday night after school, at 7 pm, by bus. They arrived in Drillham at about 11 pm. The bus was not full – it was never full. They sat towards the back of the bus and kissed and touched during the journey. Mrs Rawlings put her hand on Mr Brockhurst’s leg and near his right hip.
Mrs Rawlings stayed at the farm on Friday and Saturday night. One morning, she came into Mr Brockhurst’s bedroom. She was in a nightie. He was wearing shorts and a t-shirt. She got into his bed and they talked and laughed and “it got physical” and “she put her hands on” Mr Brockhurst, touching his backside, arm and shoulder. They kissed and intimately hugged. They were looking at each other as they lay down together.
At 3 pm on the Sunday, they left Drillham for the return journey to school. There was no touching on that journey because it was daytime.
Relationship after Easter 1997
At around this time, the notes they exchanged began to use the language of “love”. Mrs Rawlings would write “I love you xxoo”. Mr Brockhurst was “excited” and “ecstatic”. He told her that he loved her as well – many times. If he heard love songs on the radio, he would write the lyrics out and include them in a note to her, to convey to her how he felt. She did the same.
His phone calls to her at night never stopped. The frequency of their physical contact increased. They would hug nearly every day – including after a class (if she was a substitute teacher for one of Mr Brockhurst’s classes) if no one was watching. Mr Brockhurst would deliberately be the last to leave the class. Kissing became “more regular”.
Mr Brockhurst continued to see Mrs Rawlings in her room. He would walk her to her car at the end of the night to spend time with her until she had to go to ensure she was home before her husband, who arrived home after work at about 10 pm.
April 1997
Other evidence established that Mr Brockhurst and Mrs Rawlings were seen by other school students in a compromising position in her classroom in April 1997. Mrs Rawlings was thereafter directed not to be alone with Mr Brockhurst, or any other schoolboy.
Mr Brockhurst was not told about what the other students saw. Nor was he told about the school’s direction to Mrs Rawlings that she was not to be alone with him. But Mrs Rawlings said that it was after this direction, and after discussing things with Mr Brockhurst’s mother, that they (she and Mrs Brockhurst) decided that he could telephone her at home. Mrs Rawlings said that it was only after April 1997 that he did so.
Intimate touching
Just before the June/July holidays of 1997, their relationship became more intimate. Mrs Rawlings touched Mr Brockhurst on the penis, on the outside of his clothing and then underneath, on his skin. Mrs Rawlings first put her hand on Mr Brockhurst’s penis while they were alone together in her room. She fondled him. His penis became erect. He did not ejaculate. He was touching her while it occurred, but not on her vagina.
After two or three similar episodes, Mr Brockhurst wanted to “return the favour” but did not really know what to do. Mrs Rawlings showed him. She placed his hand on her leg, and slowly “crept” it up to her vagina, on the outside of her clothing (she often wore cargo pants). He rubbed her vagina. Then she guided or “helped” his hand underneath her pants, onto her vagina. He had his hands down her pants for about a minute. At about the same time, after an episode of kissing, she took his hand and placed it on her breast, on the outside of her clothing, and held it there. In the car, once or twice, a matter of days after he first touched her breast in her room, she “helped” him touch the skin of her breasts, under her shirt. Touching of that kind occurred about ten times.
Visits to Mrs Rawlings’ house
Mr Brockhurst visited Mrs Rawlings’ house. Sometimes, she drove him there. Other times, he ran there from the school. It took him about 25 minutes. He described the route he took in a way I found particularly convincing.[5] His first visit was on a Sunday. She picked him up from the boarding house in the afternoon. He did not have to “sign out” of the boarding house. He was supposed to, because he was leaving the school, but things were relaxed on a Sunday. Mrs Rawlings’ husband was not at home when she and Mr Brockhurst first arrived, but he returned home later that day. Mrs Rawlings showed Mr Brockhurst where she lived. He could remember only talking (no touching) on that occasion. Then she drove Mr Brockhurst back to the school. He had been away about two hours.
[5]Transcript 2-73, Lines 30-35; Transcript 4-53, Lines 20-30.
First occasion of sexual intercourse
The second term of 1997 ended on a Thursday. On Friday, Saturday and Sunday, there was a schoolboys’ rugby carnival at Downlands College in Toowoomba. Mr Brockhurst was doing a course in refereeing and he was allowed to be part of the carnival to gain practical experience. Mrs Rawlings asked him to stay at her house for the carnival and he thought that was a great idea. He asked his parents for permission to do so and it was granted. As far as he could tell, it suited his parents too.
There were two bedrooms at the front of Mrs Rawlings’ house, separated by a hallway (in the style of a worker’s cottage). There was a loungeroom in the middle, running the width of the house and, at the back of the house, a kitchen, bathroom and third bedroom. As one is looking at the house from the road, Mrs Rawlings and her husband slept in the bedroom on the left-hand side of the hallway, at the front. Mr Brockhurst said he slept in the other bedroom at the front on the opposite side of the hallway. Mrs Rawlings claims he slept in the third bedroom – because her father-in-law was in the other front bedroom. Mr Brockhurst does not remember Mrs Rawlings’ father-in-law being at the house at that time.
Mr Brockhurst did not recall anything in particular happening on the Friday night. He spent most of Saturday at the carnival at Downlands. Mrs Rawlings dropped him there and collected him at about 4 o’clock. Later they had dinner and he went to sleep. He was pretty tired from the day. Mr Brockhurst’s understanding was that Mrs Rawlings and her husband were preparing to open their restaurant at around this time. Sometime over that weekend, he was shown the restaurant.
He woke mid-morning on the Sunday, between 9 and 10 am. Mrs Rawlings came into his bedroom. He did not understand her husband to be home. She got into bed with him. They kissed passionately. She undressed herself, and undressed Mr Brockhurst. She touched his penis and he became erect. She caused him to touch her vagina. As he was lying on his back, she got on top of him and put his penis into her vagina. He did not ejaculate during intercourse, but did so when she masturbated him, not long after intercourse. Whilst he had ejaculated before, that was the first time he had ejaculated in Mrs Rawlings’ company.
After their sex, Mrs Rawlings took him to the carnival. He spent half a day there and then went home (to the farm) for the rest of the holidays.
Mr Brockhurst’s parents found the defendant’s correspondence
Other evidence established that, unbeknownst to Mr Brockhurst, during the holidays, his father found one of the faxes which Mrs Rawlings sent to him. Also unbeknownst to him, his mother went through his belongings and found other notes, faxes, letters et cetera from Mrs Rawlings to him, the content of which was affectionate and loving.
At the beginning of term 3, which commenced on 14 July 1997, without saying anything to Mr Brockhurst about it, Mr Brockhurst’s parents took the correspondence which they found to TGS. The correspondence was taken from them – they presumed to be photocopied – and then given back to them. The Headmaster, Hugh Rose, was on sabbatical leave. They were advised to wait until his return to discuss matters further. Some of the correspondence found by Mr Brockhurst’s parents was tendered at trial.
According to the defendant, during the school holidays, the plaintiff told her that his parents were going to complain to the school about her being too close to him. At Mrs Rawlings’ instruction, Mr Brockhurst returned some of the correspondence to her.
Fellatio
Mr Brockhurst returned to school for term 3. About a month into the term, while they were alone in Mrs Rawlings’ car, Mr Brockhurst asked her to fellate him. He had seen that activity in magazines which the boys had in the boarding house. She did so, in total, about ten times before their relationship ended with her resignation from the school. She fellated him in her car; in her room at the school; and a couple of times at her house after Mr Brockhurst ran there.
Other occasions of sexual intercourse
On one cold and foggy day, Mr Brockhurst ran to Mrs Rawlings’ house early in the morning and they had sexual intercourse under doonas in the loungeroom watching “Rage” on the television. They had sexual intercourse one more time at school, in Mrs Rawlings’ room, but it was “very fast”. It occurred after 8 pm. They removed their pants only. Mr Brockhurst lay down on a desk in the room and Mrs Rawlings had sexual intercourse with him, on top of him. He did not ejaculate. He did not ejaculate often whilst with Mrs Rawlings and especially not if they were at the school.
As mentioned above, throughout their relationship, Mr Brockhurst sent Mrs Rawlings notes or letters setting out the lyrics of songs which captured how he felt about her. He sent her the lyrics of about a dozen songs, including “Truly Madly Deeply” by Savage Garden. He would send either the lyrics of the whole of the song, or just its chorus: whatever was “applicable” or “mattered”.
Mrs Rawlings left TGS
Mr Brockhurst’s Year 9 class went to camp for a week in early August (although Mr Brockhurst thought it was in September).[6] Mr Rose was back at school by then. After Mr Brockhurst’s parents complained to him about Mrs Rawlings’ relationship with their son, the school counsellor, Robert Wood, drove to the camp, collected Mr Brockhurst, and drove him back to the school. Nothing was said between them until they were in Mr Wood’s office. Mr Brockhurst found Mr Wood an imposing man. Mr Wood said, “there’s something going on between you two”. Mr Brockhurst understood him to be referring to Mrs Rawlings. He “sheepishly gave an indication” that there was, but he did not want to say too much so he “shut up shop”. Although Mr Wood was included as one of the defendant’s witnesses on the trial plan, he was not called to give evidence in her case.
[6]The school diary for 1997, which was tendered, notes the camp dates.
The plaintiff remembered being spoken to by the Deputy Headmaster, Mr Buttenshaw, but he could not recall any of the conversation. Mr Buttenshaw, who was called in the plaintiff’s case, was not questioned about it.
It was decided that the plaintiff ought to spend the balance of term 3 at home with his parents. From Mr Brockhurst’s perspective, Mrs Rawlings then “just disappeared”; “vanished into … thin air”. Other evidence established that Mrs Rawlings tendered a letter of resignation dated 11 August 1997, effective as at 19 September 1997 (the last day of term 3).[7] But it seems that she actually returned to the school in term 4 and stayed a week, to “settle in” her replacement.
[7]As per the school diary.
Mr Brockhurst did not know what was going on. He called Mrs Rawlings. She told him she wanted to meet him, but she was not allowed back on the school grounds. They met near the tennis courts. She told him she would not be returning to the school. He was heartbroken. He rang her again in less than a week. She picked him up from the boarding house and they went to the food court at the Clifford Gardens’ shopping centre, which was close to her house. She told him that she could not see him anymore; their relationship had to end; they had to finish it. As Mr Brockhurst saw it, their relationship, which he thought was serious, “very close to nearly a husband and wife”, was “just being thrown away”.
The plaintiff left TGS
Later that year, Mr Brockhurst was “kicked out” of TGS by the Headmaster for bullying behaviour – including bullying a boy in his year (X). Mr Brockhurst said he had not bullied X. The only thing that he “really participated in” was “hazing”. He did not elaborate upon what “hazing” involved. Mr Brockhurst admitted to playing football “rough” with X in the hallways of the boarding house but said that no one gave X a hard time because his brother was older (in Year 10), bigger and had a temper.
Mrs Rawlings’ notes
Mr Brockhurst kept a lot of the letters/notes Mrs Rawlings wrote to him in a padlocked red toolbox which he had at school and brought home for the school holidays. He kept the ones that had “meaning” for him: that is, the ones that included phrases like “I love you”; “I miss you”; or “I wish you were here”. He kept them to “reflect” on them. He thought his mother threw them out when the family moved from the farm at Drillham into the town of Miles in 1999 because she did not want to bring back old memories. (Mrs Brockhurst thought it was later than 1999 that she threw the correspondence out.)
The plaintiff’s perception of the change in his behaviour during his relationship with Mrs Rawlings
As Mr Brockhurst saw it, his behaviour changed during the latter part of 1996. He felt he had something more in his life than school. He was only interested in Mrs Rawlings. He felt like a “social outcast” and his behaviour “dropped a bit”. By “dropped a bit” he meant that he would not listen to his teachers. He received “Friday Detentions”. He did not try very hard with his assignments.
After they had sexual intercourse for the first time, Mr Brockhurst “disintegrated” when it came to his school performance. As he saw it, he went from a polite and nice boy to one who challenged authority and was argumentative. He put no effort into his schoolwork. He did not respect many of the other teachers. As he saw it, he “had Mrs Rawlings” and knew she would protect him.
The boys in Mackintosh House asked questions about his relationship with Mrs Rawlings. Some asked him whether he could “hook [them] up” with her. Others asked what colour her “pubes” were. He was known as “the guy who was with the teacher”.
The aftermath of the abuse
Schooling / personality after the abuse
After he left TGS, at the end of 1997, Mr Brockhurst went home to the farm heartbroken and angry. He said he was “completely different”. He was not interested in the things he would ordinarily be interested in.
In 1998 and 1999, he attended Miles State High. He did not do well. He could not “do” schooling anymore. His attendance was sporadic. His attitude was “rubbish”. He did not care what anyone thought of him. The only thing he cared about was playing a bit of sport.
His relationship with his parents fell apart. He understood that they knew that something changed him completely, but he did not tell them the whole story. He was angry all the time. He was angry because he thought his parents had deliberately stepped in to end his relationship with Mrs Rawlings. He was angry because they did not protect him from the school, which (as he saw it) fabricated a reason to kick him out.
In 2000, Mr Brockhurst’s parents got in touch with the registrar of TGS about his returning there for Year 11. His return was on the condition that he went to another boarding house. His attitude upon his return was “pathetic”. He wanted to “reset” but his old friends did not want to know him because he was “that guy who got kicked out of school for being with a teacher”. He did not bother with his schoolwork. He did not want to be a part of anything extra-curricular. He made friends with “the wrong crowd” – that is, the guys who smoked weed behind the footy oval. In 2000, he and others ordered products online (in their own names). He said they thought it was a joke and that nothing would arrive at school – but it did. Police were called and he was asked to leave the school, again. He pleaded guilty to fraud.
He then attended The Southport School. He lasted three weeks. He hated it. He said his “behavioural traits” – by which he meant not being bothered about going to school, not trying, not respecting his teachers, not being considerate of others – followed him. He thought the whole world was against him. He saw no reason to do anything because his life was “pretty rubbish”.
He went to Miles State School again briefly, before enrolling at St Joseph’s College, Nudgee for the balance of 2000 (year 11) and 2001 (year 12). His behaviour at Nudgee was a little better. It had an agricultural program. He tried to “reset” and make a go of it, but academically it was pointless: he was so far behind. He participated in sport and made acquaintances, but his Year 12 Certificate results were “diabolical”.
Post-school employment and relationships
In 2001, through Nudgee, he undertook a school-based apprenticeship as a mechanic. He did not last long because, once school ended, he had no accommodation in Brisbane.
Then he did not want to do anything. He wanted to be at home by himself. He did not want to see anyone. He wanted to step back from life.
By the time he was 20, he appreciated that what had happened to him as a 13 and 14-year-old was wrong. He was mad, angry, bitter and upset.
In 2003, Mr Brockhurst went overseas on a “scholarship” which arose out of his earlier involvement in a Young Endeavour program (a leadership program for young people, based on a sailing ship). He explained that, after he finished his Young Endeavour program, he was offered an opportunity to travel to the United Kingdom for a similar experience (his “scholarship”). It was “a big deal”. He had lunch with the Prime Minister (John Howard) and Rear Admirals. The scholarship lasted two or three weeks. He enjoyed the UK so much that he returned there in 2005 to play cricket.
In 2003, he was employed by an insurance company in Chinchilla.
In late 2004, he was employed by PDF Foods in Miles. He only lasted a month, mostly because he could not sleep and the lack of sleep caught up with him, leaving him exhausted and emotionally drained. He slipped back into his old habit of “not caring”. Also, he was drinking heavily – up to two six-packs of rum a day. He was smoking “a pack a day” and gambling on poker machines and horses. He was drinking and gambling for years, until he met his ex-wife when he was nearly 30.
In 2005, aged about 24, he travelled to the UK to play cricket. At the same time, he was working in a bar. He did not get on with some of his fellow workers. He was told that he could not play cricket if he could not get along with them. He returned home.
He obtained work at the Choice Service Station in Miles. He got on well with the manager, who was about his age. After a couple of months, he was offered a job in their new service station at Gin Gin. He and the manager both went to Gin Gin and “made a crack at it” for four or five months. It was during that time that he had his first relationship. But he did not want anyone to touch him and he avoided intimacy. His girlfriend ended the relationship. That “cut him to pieces” and he went home to his parents.
He obtained an IT traineeship with the Department of Education, based at a school at Wandoan, near Taroom. He acknowledged that it was a good opportunity, but he struggled being among teachers, who were the last people he trusted. He was also required to drive 70 kilometres each day, which took its toll on him because of his poor sleep. He “slipped back” into hating life and himself.
In late 2006, he got a job as a personal banker at the Westpac Bank in Toowoomba. It was difficult from the start. “Everything” came back to him. He hated work. He did not want to be out in the world. He did not want to do anything. He was still angry and felt “haunted”. He left the bank and was unemployed for about a year before commencing work at Elders in Dalby, in October 2007. As part of a certain Elders program, he sold satellite internet to primary producers. At the end of three months, the program ended. He had other work in Dalby available to him, but he was finding life difficult.
After Elders, he decided to try a “new experience” and obtained work teaching English in China. However, upon his arrival in China he was provided with a fraudulent work visa which claimed he had a doctorate from QUT. He would not work fraudulently, so he returned to Australia and reported the matter to QUT. He had been in China for about a month.
He was then unemployed for about three years. It was the worst he felt. He would not socialise – even in the company of his parents or with long time family friends. He spent half of the day in bed, “locked away from the world”. During those three years, he was offered a job with the council driving a loader, but he did not make it to work on the first day because he had not slept the night before.
He obtained work with the ANZ Bank at Chinchilla, commencing on 27 September 2010. He worked at the bank until February or March of the following year, 2011. He wished to take six weeks leave to visit the USA to meet his future wife, Katherine, whom he had met online whilst he was in China. He was not entitled to leave of that duration, so he resigned.
After six weeks in the USA, he returned to Australia and obtained work with QR National at Rockhampton as an apprentice diesel fitter. He began well, enjoying the manual work. But after two or three months, he “fell back into a hole”. Katherine’s visa process was taking a while. He was not sleeping. He could feel “the rut” coming. He spoke to his manager and was given time off, but he found himself arguing over trivial matters with his parents and accusing them of not having helped him since he was 13 at TGS. At times, he felt that no one would know whether he was “here” or not. He did not ever attempt to take his own life although he was “thinking it, perhaps” in the mid-2000s.[8]
[8]Transcript 4-88, line 20.
He resigned from QR National in April 2012. Towards the end of 2012, he “got lucky” and was offered employment, via a labour hire company, as an apprentice diesel fitter at Peabody Energy at Dalby. This gave him a start in the mining industry. He worked on heavy machinery and enjoyed it although he was “having trouble” with drinking and gambling. He worked at Dalby until April 2013 by which time the mine was winding down.
Katherine arrived in Australia in November 2012 or 2013 (the plaintiff’s evidence was inconsistent). Her visa required them to marry within 90 days. They married on 8 January 2014 or 12 January 2013 (the plaintiff was inconsistent). Mr Brockhurst found, overall, that his relationship with Katherine made him feel better. He got on well with her family and felt “a little normal again”.
Mr Brockhurst’s next employment was with Cummins in Mackay which offered to continue his apprenticeship. However, Mackay was an expensive place to live and Katherine was not working. He resigned.
He then worked at the Commonwealth Bank in Toowoomba. As far as he was concerned, he was good at this work (personal banking) and enjoyed it. After three or four months with the bank, he was offered a role with Ritchie Brothers Auctioneers in Brisbane. They sold dozers, graders, dump trucks, mining equipment et cetera – things he was interested in.
He started with Ritchie Brothers in late November but was terminated over an issue to do with a Spanish medical certificate. He had fallen ill whilst on holidays in Spain with Katherine and did not return to work when he was expected to. Upon his return, he produced a medical certificate, which was in Spanish, that his employer did not accept.
His relationship with Katherine was “up and down”. He found it hard to be intimate with her and made excuses to avoid it. It felt like “an invasion of privacy all over again”. When they were intimate, he saw a “photo image” of Mrs Rawlings in his head, looking at him during their sexual intercourse when he was 14.
In July 2014, he was offered a job by Dominic Kerwick, a family friend, who owned an earthmoving business. He enjoyed that employment and remained in it for three years. Mr Kerwick was very good to him. Mr Kerwick trusted him and upskilled him. It was while working for Mr Kerwick that the plaintiff decided to see Shine Lawyers about his childhood sexual abuse. After seeing Shine Lawyers, Mr Brockhurst told Mr Kerwick what he had done (consulted Shine Lawyers) and why (in brief terms).
Katherine left Mr Brockhurst in November 2017. By that time, they were sleeping in different rooms. Katherine could not understand why Mr Brockhurst did not want to be intimate with her. Her leaving “nearly killed [Mr Brockhurst] for a long time”. It felt like 1997 again “when your heart gets crushed and you don’t know what’s going on and then that’s it, and the only thing you have to tell yourself is that you had to accept it, because there’s nothing you can do about it”. As Mr Brockhurst saw it, the trigger for the deterioration in their relationship was his going to Shine Lawyers and “asking for help”. The burden of going through the memories and explaining things in detail (to Shine), “punched [Mr Brockhurst] into the ground”.
In 2018, through a labour hire company, Mr Brockhurst obtained a position driving haul trucks and water carts at a coal mine at Dysart. He worked there until Easter of 2018 at which time he was offered an “upgrade” to an Anglo American coal mine at Lake Lindsay. He lasted there only two months, because he found the week on/week off roster difficult. During his week off, he lived, with other workers, in “camp”, in a “little donga”, with nothing to do but think of this legal process and what had happened to him as a child. He could not “handle” being away from his family and he left the position.
He was offered a job at the North Goonyella mine at Moranbah driving dump trucks and water carts. But he instead took up a position at the Peak Downs mine where he worked between June and November of 2018. He enjoyed the job, but after his sixth or seventh “swing” (that is, his rostered week off) he could feel himself “slipping” emotionally. He met with the project manager. He broke down in front of him and told him about this legal process and how difficult he found it. He was given leave and a transfer to Muswellbrook in New South Wales.
He could not find accommodation in Muswellbrook so did not work there. Instead, he took another job with Peabody, “the world’s biggest coal mining company”, in November 2018, because “you did not knock back an offer of work from them”. He stayed there until April 2019. He worked at Coppabella, which he found a very good site. He worked with people he found kind and genuine and he “made a couple of good mates”. But by late January 2019, the pattern was repeating. He had been reliving the abuse (during interviews with experts for the purposes of this trial) which overwhelmed him. He tried to fight it. He called the Human Resources Manager one evening and told her about this case. He told her that he could not deal with the isolation of one week on/one week off and he was unable to concentrate, which was a safety risk. He was transferred to another mine, in a “residential role”, in July 2019. He was so proud that he had been offered that role, especially after telling his story. He thought the business would want nothing to do with his drama. He worked well there, even though he spent 11 ½ hours by himself a day.
By October 2019, he was receiving statements from the defendant’s lawyers, which included (what he saw as) lies. He could not sleep. He tried to remain calm but his patience was “pretty thin”. He was irritable. He was thinking about this case all the time. When it became “real tough”, he arranged a meeting with the Human Resources Manager and the lead engineer. He told them his story. They offered him leave without pay until after Christmas 2019. It was intended that he return on New Year’s Day 2020, but he felt terrible, embarrassed, and ashamed. He did not want to see them again. He did not think he could return to work because, even while he had been at home, he could not sleep. He was arguing with his parents in a way he could not control.
In about March of 2020, he obtained a job with Wolff Mining (via a labour hire company) but there was some contractual “misunderstanding” and, while he and other workers were paid, they stayed in camp. It did not last long.
His next employment was with BHP. During the Covid-19 pandemic, the composition of BHP’s workforce at mine sites was uncertain (because of travel restrictions) so it employed standby workers, who were required to work at a moment’s notice. Mr Brockhurst was employed on a paid, standby, basis for 11 or 12 weeks.
During this trial, he was due to start with Evolution Mining in West Wyalong on 16 March 2021. The mining company was to provide him with a house and base pay of $97,000 per annum.
Over the years, he made three applications to join the Defence Force. He said that he was “vetted for a top secret [security] clearance”. He said he had never been unsuccessful in any of his applications to the Defence Force but, as I understood his evidence, he missed a certain intake date because he was waiting for his security clearance to come through.
He said that he was offered a position (or perhaps another position) in the Defence Force which he was unable to take up because he had “some small problems with [his] shoulder” which he was trying to fix.
Mr Brockhurst explained that he was able to get the many jobs he held since leaving school because he performed well in interviews and researched beforehand the companies to whom he applied for work. He learnt about the vacancies by either reading the newspaper (mostly the Chinchilla News); searching online; or through word of mouth. Also, from time to time, labour hire companies, would invite him to take up a position at a mine because of his experience in/qualifications for the use of certain machinery.
Emotional aftermath of, and psychological treatment for, the sexual abuse
While the plaintiff was still at school, word of the defendant’s relationship with him spread. He was known as “the guy kicked out of Grammar because of the teacher”. But no one asked whether he was okay. As a younger person, he felt like he was “the King” when the boys said things like, “I wish I was you”. As he got older, he hated it.
As Mr Brockhurst understood things, in 1997, the school “really … put it on” his parents to arrange for him to see Dr Scott, a psychiatrist. He told Dr Scott that he had “physical relations” with Mrs Rawlings, but they brushed over the detail. He told Dr Scott that the school kicked him out; he was heartbroken; he missed it all and he was angry because something he loved had been taken away from him and he had no idea why.
Dr Scott wanted Mr Brockhurst to take medication (the name of which he could not remember), but he did not want to take it. He did not feel he had to take it. He did not feel that anything was wrong with him.
Mr Brockhurst saw Dr Scott from October 1997 until May 1998. Thereafter, apart from two phone calls to an employee hotline, and one visit to a psychologist (Ken Smith) in 2008, he sought no psychological treatment for the abuse until after seeing his present lawyers in 2015. He then saw his general practitioner and was prescribed an anti-depressant which he took only for a few days.
In addition to his “diabolical” school results, Mr Brockhurst was bitter and angry “at the world”. He fought with his parents all the time, including over trivial things. His accusation that his parents had not protected him brought his mother to tears. Mostly he felt “why me?” He thought about Mrs Rawlings all the time. To this day, he experiences flashbacks of the first time they had sexual intercourse. He still does not trust people. He still cannot sleep. He is ashamed that he had to rely on his parents when he had gaps in employment. As he sees it, they “carried him” and he contributed nothing.
The plaintiff’s occupational plans
If his results had been better, Mr Brockhurst would have considered studying agronomy, and a return to the farm. (But the farm was sold after the drought.) He loved using his hands and building things which made civil engineering an attractive option. He also thought about the Defence Force (to which he did apply) or the police service.
PART B CROSS-EXAMINATION OF THE PLAINTIFF
Inconsistency generally
The defendant submitted that I would find so many inconsistencies in the plaintiff’s case, including between the plaintiff’s testimony and his prior statements, that I could not be satisfied of his credibility or reliability. Many of the inconsistencies relied upon by the defendant were said to have been between the plaintiff’s evidence before me and statements he made to the three psychiatrists, Dr Leong, Dr Evans and Dr Chalk, who provided reports for the purpose of this litigation.
The inconsistencies relied upon by the defendant to detract from the plaintiff’s credibility and reliability did not cause me any concern.
Putting to one side for the moment (a) statements made by the plaintiff in his applications to join the Defence Force; (b) his statements to the psychiatrists about the absence of past trauma; and (c) whether, in 1997, he told Dr Scott about the sexual abuse (which are considered separately below), in my view, the other statements which counsel for the defendant suggested were inconsistent were either –
·not in fact inconsistent when evaluated reasonably. For example –
othe plaintiff’s ability to attend to the activities of daily living was not inconsistent with his suffering from depression; and
othe plaintiff did not work for the Navy; but his statement to “Mandy” from Centrelink, about “working” overseas for the Navy in a civilian capacity undertaking “PR for Australia”, was not inconsistent with his loose description of his “scholarship” arising out of the Young Endeavour program, which was delivered by Navy personnel;
·not in fact inconsistent because the different statements related to the plaintiff’s conduct or behaviour at different periods of time over the two and a half decades since he was 13/14. Into this category fell statements about the quality of his sleep; mood; social interactions; energy levels; or alcohol consumption – which varied over the years;
·satisfactorily explained by the likelihood that the apparently inconsistent prior statement reflected misunderstanding or mistake on the part of the person to whom Mr Brockhurst spoke about what Mr Brockhurst in fact said. For example –
oIn evidence, Mr Brockhurst denied having gambling issues from the age of 16. He denied that he told Dr Leong that he did. I accepted his denial. He had no obvious reason to lie about the age at which his gambling issues onset. It is likely that Dr Leong misunderstood the information given to him by Mr Brockhurst;
oIn evidence, Mr Brockhurst said he had no memory of Mrs Rawlings jumping up and down on the sidelines of his soccer field, while he played as goalkeeper; and he denied telling Dr Evans so. He said in evidence that he had a memory of Mrs Rawlings on the sidelines of his rugby match. I accepted that Mr Brockhurst did not describe a soccer memory to Dr Evans. He did not play soccer. Dr Evans was likely mistaken. Regardless, this inconsistency was trivial;
·satisfactorily explained by Mr Brockhurst’s unsurprisingly patchy memory of peripheral matters. For example, I accepted that Mr Brockhurst forgot, until he spoke to Dr Chalk in February 2019, that he had smoked cannabis once, in Amsterdam in 2003;
·satisfactorily explained by the different persons to whom Mr Brockhurst made the inconsistent statements or the context in which the separate statements were made. For example, I accepted that Mr Brockhurst was prepared to tell persons he trusted, including employers or human resource managers, about Mrs Rawlings’ sexual abuse of him but was not prepared to disclose his sexual abuse in answers to questions contained in a Defence Force questionnaire;
·satisfactorily explained by the plaintiff. For example, I accepted that Dr Chalk dealt briefly with contextual matters, such as the amount of alcohol the plaintiff consumed over his adulthood, and his gambling behaviours, and that the plaintiff responded briefly and not comprehensively to questions of that sort;
or
·trivially inconsistent. For example, whether there were 29 or 32 children at his primary school; or whether he was 16 or 17 when he pleaded guilty to fraud.
With respect to general damages, the plaintiff sought an award of $100,000. The defendant submitted that that was excessive and that the award should be limited to $50,000. The plaintiff sought an additional award of $50,000 for damages for “violation of personal integrity”.
I was referred to B v Reineker, a case from New South Wales (by the plaintiff) and P v R [2010] QSC 139 (by the defendant).
The plaintiff in Reineker was sexually abused on countless occasions, over seven or so years, by a “church” family friend who became her teacher and swimming coach. The abuse began when she was in year 9. The defendant told her he wished she was his daughter and encouraged her to call him “dad”. He threatened to kill himself if she did not do as he wished. The plaintiff became isolated. She felt trapped in the relationship and guilty about it. She fell pregnant to the defendant twice. She terminated both pregnancies. She terminated the first under the defendant’s threat that he would kill himself if she did not. She suffered from PTSD, depression, and anxiety. Her capacity for work was substantially compromised. Her ability to form mature, intimate relationships was severely impaired. She was awarded $350,000 in general damages, which included aggravated damages.
The plaintiff in P v R was sexually abused as an 8-year-old by her father’s friend. The abuse included six instances of sexual assault over a period of about 6 months. It included licking her vagina, digital penetration and simulated intercourse. The plaintiff suffered profoundly. She engaged in self-harming which left her with scars. She made three suicide attempts and was admitted to a mental health facility on four occasions. Her condition was unlikely to improve. She was awarded $80,000 in general damages.
For obvious reasons, the award for general damages in P v R aligned with awards made in Queensland for sexual abuse/assaults (see for example the discussion of other awards in BDT v BDG [2019] QDC 74).
Bearing in mind the plaintiff’s age at the relevant time and his evidence about his suffering in the aftermath of the defendant’s abuse, I awarded him general damages of $65,000.00. This amount takes into account the nature of the battery – that is, that it involved violation of his personal integrity.
Interest on general damages
The defendant made no submissions about the appropriate assessment of interest on any award of damages in the plaintiff’s favour.[42] The plaintiff asked me to follow Daubney J’s approach in P v R and to allow interest on general damages at two per cent. I did so. I calculated interest on general damages at 2 per cent per annum for a period of 25 years (that is, from 1996) on 50% of the award: $16,250.00.
[42]Even after the absence of a submission about interest had been pointed out to the defendant in the plaintiff’s closing submissions.
Economic loss
The plaintiff submitted that he would have obtained a tertiary education were it not for the impact of the defendant’s sexual abuse.
The difficulty with that submission was that the only school results untarnished by the implications of the defendant’s sexual abuse were his primary school results and the results for his first semester of high school. Other evidence about his occupational aptitude was very limited. It consisted only of evidence that he was of at least average intelligence; an SOI Learning Abilities Test, which assessed his abilities in 1995 as between high average and above average; the evidence of Dr Evans and the very brief observation of Dr Chalk.
Common sense and life experience informed me that one cannot reliably predict much about occupational outcomes on the basis of primary school performance or on the basis of first semester high school results. Also, common sense and life experience informed me that school results and intelligence alone are not always reliable predictors of employment prospects, employment success or otherwise. Family modelling, personal drive, interest and opportunity also come into play.
The defendant submitted that I would not be satisfied that the plaintiff suffered any economic loss attributable to the defendant. The defendant submitted that the plaintiff was struggling at high school before he was the subject of her inappropriate attention. She also submitted that “the plaintiff suffered from pre-existing oppositional defiance disorder and as a result of this condition, and his lower-than-average academic abilities … the plaintiff was always destined not to achieve very remunerative employment and outcomes ... [H]e … would never have achieved income near even average weekly earnings”.
The difficulty for the defendant with this submission was in its sweeping over-statement of the evidence. At best for the defendant, Dr Chalk said in one paragraph of his first report that, because of the plaintiff’s ODD, work difficulties would not be surprising. But in that same report Dr Chalk said, in effect, that the sexual abuse and the ODD had a profound impact on the plaintiff’s education and therefore his occupation.
The plaintiff described the difficulties he had over the years in finding the motivation to work and in maintaining employment. The plaintiff submitted that he would face similar problems for the rest of his working life. I noted that his problems with employment became acute inter alia whilst he was in the throes of this litigation.
I found that the plaintiff’s past inability to obtain employment, and to hold down a job for any length of time, were consequences of the psychological injury caused by the defendant’s sexual abuse. I found that the plaintiff would suffer a reduction in his earning capacity for the rest of his working life because the defendant sexually abused him as a child. Whilst the end of this litigation might reduce the plaintiff’s tendency to ruminate on the defendant’s treatment of him, it is likely that he will never be free of the consequences of her abuse. And there is a risk that any future therapy he receives might trigger discomfort or distress (at least in the short term) which will impact negatively on his ability to work.
The evidence persuaded me that, when not overwhelmed by the symptoms of his psychiatric injury, the plaintiff was driven to find work. I also noted that, in 2019, he had an earning capacity equivalent to that of a senior engineer (when he worked at the mines).
The plaintiff produced evidence which calculated his economic loss on various assumptions, that is, a forensic accountant’s report by Michael Lee CA of Vincents (exhibit 47).
The defendant’s counsel initially objected to the admissibility of Mr Lee’s report on what seemed to be a misapprehension about the way in which I might use it.[43] Ultimately, the defendant’s counsel clarified that his position was that I was able to use Mr Lee’s report in the calculations I was required to make at the end of the hearing[44] if I accepted the assumptions upon which his report was made
[43]He seemed concerned that I did not understand that I had to accept the factual foundations for Mr Lee’s calculations before I could rely upon them. I understood that.
[44]Transcript 5 – 17 lines 14 – 28.
Counsel also suggested, at one point, that I would have to be satisfied of the veracity of “the statistical calculations” undertaken by Mr Lee and the “percentages et cetera” I in the report. I told the defendant’s counsel that he could make any challenge he wished to make to Mr Lee’s data. But the defendant’s counsel did not cross-examine Mr Lee on any matter of substance. He asked nothing about Mr Lee’s methodology or the source material upon which his calculations were based. Nor did the defendant’s counsel cross-examine the plaintiff at all about any of the assumptions upon which Mr Lee’s report was based.
Mr Lee proceeded on the assumption that Mr Brockhurst would not have been earning income until 1 January 2006, on the basis that he would have been, until then, engaged in tertiary education (which Mr Brockhurst would have paid for).
I was not prepared to proceed on the basis that Mr Brockhurst would have obtained a degree in engineering, but I considered it reasonable to proceed on the basis that (were it not for the sexual abuse) he would have undertaken some sort of additional study after leaving school. Mr Lee assumed that Mr Brockhurst would have undertaken further studies for four years. I considered that a reasonable assumption to make.
However, given the plaintiff’s young age at the time of the abuse, and the limited evidence about his future prospects, I considered it appropriate to proceed on the basis that – were it not for the sexual abuse – the plaintiff’s earnings would have been comparable to the average weekly earnings for males in Australia.
I considered whether it was reasonable to proceed on the basis that the plaintiff would have been fully employed since 2006 were it not for the defendant’s sexual abuse. I considered it more probable than not that he would have been because –
·he was driven to find employment, as demonstrated by his actual employment record and his persistence in his attempts to join the defence force (which included working to overturn a finding that he was medically unfit);
·he was prepared to travel for work;
·he obtained work with relative ease – suggesting that he prepared well for, and presented well at, interview and was an attractive candidate;
·he was willing to work in a variety of roles; and
·with the exception of the issue involving the Spanish medical certificate, his employment was never terminated by his employer.
Past economic loss
On an average weekly earnings basis, I awarded the plaintiff:
(a)$613,292.00 for past economic loss,
(b)interest, at 4 per cent per annum, (from 1 January 2006 to judgment date): $383,920.79;
(c)loss of past superannuation: $64,599.00; and
(d)interest on the loss of past superannuation: $40,438.97.
Future economic loss
As to future economic loss, the plaintiff submitted that that he will continue to suffer a reduction of his earning capacity of about 50 per cent into the future.
The defendant said that there should be no award for future economic loss on the basis that the plaintiff had secured employment with Evolution Mining.
It is true that the plaintiff has demonstrated, commendably, as he has matured, an ability to stick at work that satisfies him. But as Dr Evans explained, his depressive symptoms are likely to wax and wane over time. He has demonstrated, relatively recently, his vulnerability to decline.
I considered it appropriate to proceed on the basis that, into the future, the plaintiff’s earning capacity would be reduced by 30 per cent. On that basis, I awarded the plaintiff $305,984.00.
Discount for vicissitudes
The plaintiff acknowledged that there ought to be a further discount for vicissitudes of 15%. The defendant made no contrary submission. A discount for vicissitudes of 15% is appropriate: -$45,897.60.
Loss of future superannuation
For the loss of future superannuation, on the basis that the plaintiff would earn an average weekly wage, I awarded $36,614.00 less 15 per cent for vicissitudes: $31,121.90.
Out of pocket expenses and future treatment.
The plaintiff claimed $1,192.50 for past out-of-pocket expenses and $42,900 for future treatment. The defendant submitted that there was no evidence of these matters and observed that Dr Evans noted that the plaintiff was unlikely to consider pharmacology.
Dr Evans suggested that the plaintiff was likely to need at least 12 months of psychotherapy intervention to achieve benefit – that is 26 sessions at $275 per session. According to Dr Evans, he was also likely to benefit from a longer-term psychotherapeutic relationship, involving weekly sessions with a psychiatrist (also at $275 per week) for two to five years.
On the strength of Dr Evan’s opinion, the plaintiff sought an award for future “trauma therapy” for about 5 years.
Bearing in mind the plaintiff’s attitude to therapy in the past, I doubted whether he would engage in therapy at the intensity and for the duration recommended by Dr Evans. I considered it appropriate to make a global award in the sum of $10,000.00 for future therapy.
I could not find evidence of the plaintiff’s past out of pocket expenses.
Aggravated damages
The plaintiff sought an award of $50,000 for aggravated damages, referring to P v R [2010] QSC 139 as a benchmark. Aggravated damages may be awarded where the defendant has acted with contumelious disregard for the plaintiff’s rights, in a high-handed way or with malice, in committing the tort or thereafter, and such conduct has increased the plaintiff’s suffering. Aggravated damages compensate for intangible, as well as actual, injury caused by the defendant’s wrongdoing.
In support of his claim for aggravated damages, the plaintiff referred to matters such as the defendant’s position of trust and power over him as well as her denial of sexual assault, particularly in the face of her correspondence to the plaintiff and with knowledge that TGS had accepted responsibility.
The defendant submitted that there should be no award for aggravated damages. She submitted that “it could not be held that, in the present case, the manner or circumstances in which the defendant’s actionable wrong was carried out increased the plaintiff’s suffering”.
The defendant abused her position of trust over the plaintiff, who was particularly vulnerable as a 13-year-old boarder, living away from home. The defendant’s maintaining of her innocence after the plaintiff’s parents’ complaint about her meant that neither the plaintiff’s parents nor the school were able to provide him with the support he needed at a critical time.
His difficult behaviour as a schoolboy was not properly and sympathetically understood as part of the fallout of his relationship with the defendant (on the assumption that TGS would have responded differently to the plaintiff had it known the truth). He was seen as the problem. I was also persuaded that this litigation exacerbated the plaintiff’s distress. During this trial, he was accused of lies and fantasy and it was suggested that he suffered from an undisclosed mental illness which accounted for his symptoms. Indeed, it was seriously put to Mr Brockhurst that he suffered from a delusion that he was a commissioned officer in the Navy.[45] I accepted his evidence of his mental deterioration in the face of statements from the defendant and her witnesses and how difficult he found the failed attempt at mediation.
[45]See transcript 4-76 (especially lines 43 – 45) – 4-78 (especially lines 1 – 7).
I considered this an appropriate case for an award of aggravated damages, compensatory in nature, in the amount of $35,000, with interest at 2 per cent for half of the award for 25 years: $43,750.00.
Exemplary damages
The plaintiff sought $50,000 in exemplary damages. He submitted, by reference to P v R, that the defendant’s sexual abuse of him as a vulnerable child called for an award of punitive damages. He also referred to the defendant’s financial means.
Whilst aggravated damages are compensatory in nature, exemplary damages are punitive. They are awarded to punish a defendant; to provide retribution; to act as a deterrent to the defendant and others minded to conduct themselves similarly, and to demonstrate the Court’s disapproval of a defendant’s conduct.
The plaintiff chose not to pursue the defendant through the criminal courts. She has therefore suffered no penal sanction for her conduct.
The defendant noted that the “if but only if” test applied to the award of exemplary damages (see WAQ v Di Pino [2012] QCA 283). She submitted that the amount to be awarded to the plaintiff under the other heads of damages was not inadequate to punish her. The defendant submitted (without evidence) that I should “note” that the defendant “received significant publicity in the media during the trial, including her photograph and name being on the front page of the Toowoomba Chronicle as well as various social media sites so the defendant has suffered a significant amount of public shaming and will likely suffer significant economic consequences in the event of any adverse finding in these proceedings”.
I considered it appropriate to make an additional award for exemplary damages to convey the Court’s denunciation of the defendant’s abusive conduct and to ensure that the plaintiff is adequately compensated. The defendant’s utterly selfish conduct included her sexual pursuit of the plaintiff, even after she had been warned to keep away from him. Her conduct took from him the opportunity to develop, in his own time, as a mature, sexual adult.
I was however concerned to ensure that I did not compensate the plaintiff twice for the same elements of the defendant’s conduct – such as the defendant’s position of trust over him – and settled on an award of $15,000.00 in exemplary damages.
Set-off
The plaintiff’s claim against TGS was compromised by way of the school’s payment to him of $150,000. The parties spent a long time in submissions about whether and how much my award of damages to the plaintiff ought to be reduced to take into account that payment.
The plaintiff submitted that, if I considered it appropriate to make a set off, it should be in the sum of approximately $90,000 – that is, $150,000 net of the plaintiff’s legal fees. The defendant submitted that I should set off the whole of the $150,000.
Guided by Mark Bain Constructions Pty Ltd v Avis; Mark Bain Constructions Pty Ltd v Barnscape Pty Ltd [2012] QCA 100 and doing the best I could to estimate the costs proportion of the settlement sum, I considered it appropriate to set off an amount of $100,000: -$100,000.00.
Total award
Damages are payable to the plaintiff by the defendant in the sum of $1,443,459.06.
Costs
I will hear the parties as to costs.
Corrigendum
After publishing my reasons, on 27 August 2021, I asked the parties to check my quantum calculations. The parties agreed that I had made certain errors in my calculations. The parties agreed that my intention was to make a total damages award of $1,443,459.06 – not $1,456,524.15, as per my original calculations. Accordingly, on 17 September 2021, under the slip rule, I corrected my computation errors which included (but not only) the calculation of interest on general damages on the whole of, rather than half of, the award and failing to reduce by 15 per cent (to take into account vicissitudes) the interest on the loss of past superannuation. These reasons now reflect the correct amount awarded for each head of damage and interest until the date of judgment where appropriate. I thank the parties for their assistance.
3
4
0