DB (a pseudonym) v The State of Western Australia
[2025] WADC 60
•9 SEPTEMBER 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DB (a pseudonym) -v- THE STATE OF WESTERN AUSTRALIA [2025] WADC 60
CORAM: BLACK DCJ
HEARD: 8, 10, 14, 15, 16, 17, 20, 21, 22, 23, 24, 28, 29, 30 JANUARY, 3, 4, 6, 7 FEBRUARY 2025
DELIVERED : 9 SEPTEMBER 2025
FILE NO/S: CIV 3719 of 2021
BETWEEN: DB (a pseudonym)
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
CHILDREN AND COMMUNITY SERVICES MINISTERIAL BODY
Second Defendant
Catchwords:
Liability of the State and ministerial body to ward of the State - Who owes relevant duties - Scope of duty owed by guardian - Immunity of State if wrongdoer acted in good faith - Delegable functions - Psychiatric harm caused by negligence - Impact of Malec - Disentanglement of causes - Limitation Act 2005, s 6A - Sexual abuse and matters ancillary to abuse - Exemplary damages
Legislation:
Child Welfare Act 1947 (WA)
Children and Community Services Act 2004 (WA)
Civil Liability Act 2002 (WA)
Community Services Act 1972 (WA)
Criminal Injuries Compensation Act 2003 (WA)
Evidence Act 2005 (WA)
Limitations Act 2005 (WA)
Result:
Plaintiff's claim against first defendant successful
Damages award against first defendant in favour of the plaintiff in the sum of $2,846.960.69
Plaintiff's claim against the second defendant dismissed
Representation:
Counsel:
| Plaintiff | : | Mr J Sheldrick |
| First Defendant | : | Ms F Stanton |
| Second Defendant | : | Ms F Stanton |
Solicitors:
| Plaintiff | : | Maurice Blackburn |
| First Defendant | : | Minter Ellison |
| Second Defendant | : | Minter Ellison |
Case(s) referred to in decision(s):
Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243; [2002] Aust Torts Reports 81-636
Baker v Campbell (1983) 153 CLR 52
Bell v The State of Western Australia [2004] WASCA 205; (2004) 28 WAR 555
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bird v DP (a pseudonym) [2024] HCA 41
Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105
Burton v Babb [2020] NSWCA 331
Carter v Walker [2010] VSCA 340; (2010) 32 VR 1
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 [41]; (1999) 200 CLR 1
Cunningham v Traynor [2016] WADC 168
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Electricity Networks Corporation t/as Western Power v Herridge Parties [2022] HCA 37; (2022) 276 CLR 271
Erlich v Leifer [2015] VSC 499
Footscray Football Club Ltd v Kneale [2024] VSCA 314
Fountain v Alexander (1982) 150 CLR 615
Graham Barclay Oysters Pty Ltd v Ryan (2022) 211 CLR 540
Graham v Baker (1961) 106 CLR 340
Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1
Johnstone v Stewart [1968] SASR 142
Koehler v Cerebos (Australia) Ltd [2005] HCA 15
Kondis v State Transport Authority (1984) 154 CLR 672
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27
Longman v The Queen (1989) 168 CLR 79
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
McDermid v Nash Dredging and Reclamation Co Ltd [1987] AC 906
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Parkin v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) [2020] WASC 306
PLA (a pseudonym) v DEF (a pseudonym) [2024] WADC 53
Purkess v Crittenden (1965) 114 CLR 164
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
SB v State of New South Wales [2004] VSC 514; (2004) 13 VR 527
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Shorey v PT Ltd [2003] HCA 27; (2003) 197 ALR 410
Smith v Jenkins (1970) 119 CLR 397
South Australia v Clark (1966) 66 SASR 199
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537
The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40
The Finance Brokers Supervisory Board v Van Stokkum [2006] WASCA 97
The State of Western Australia v Cunningham [No 3] [2018] WASCA 207
TJ (a pseudonym) v The Bishop of the Roman Catholic Diocese of Wagga Wagga [2023] VSC 704
Watts v Rake (1960) 108 CLR 158
Wedd v Wedd [1948] SASR 104
Western Australia v Watson [1990] WAR 248
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515
Youngman v Lawson [1981 1 NSWLR 439
ZYX v Cable [No 5] [2023] WADC 61
BLACK DCJ:
Introduction
The plaintiff was born on 10 January 1980. He is alleged to have been sexually abused as a child by multiple perpetrators during four separate residential placements while a ward of the State. He claims damages for the psychiatric injuries and other losses caused as a consequence of the negligence of the Director General and the defendants leading to the abuse.
On 25 August 1992 at a case conference of the Department for Community Services, the following was observed:[1]
The background and events shown in this case characterise a story of abuse, betrayal and rejection by many of the significant adults in the children's lives … [The children] have both experienced and been witness to a significant amount of physical and sexual abuse.
[1] Exhibit 201.
When the plaintiff was 8 years old, he and his 5-year-old sister, CB were made wards of the State. This arose out of the plaintiff's disclosure of sexual abuse against himself and his sister by their stepfather, GN. The intervention of the State was considered necessary by the Department for Community Services (the Department) as their mother was unwilling to act protectively toward them and the children were believed to be at risk of further harm.
The children were apprehended in July 1988 and a wardship committal order was made under s 30(1)(a) of the Child Welfare Act 1947 (WA) (CWA) on 5 December 1988. The plaintiff and his sister were recommitted to the care of the State as a ward on subsequent occasions. The wardship ultimately ended when the plaintiff turned 18 on 10 January 1998.
From the time of the wardship order in late 1988 onward, the plaintiff and his sister were moved to and from the homes of various caregivers. This included homes of other members of their family, foster carers, institutions, and on one occasion they were returned back to the home of their stepfather. On a number of these occasions both children were sexually abused.
The plaintiff's case relates to the periods of time when he was under the care, protection, guardianship, management and control of the State and the Director General of the Department for Community Services (DG). The plaintiff was repeatedly sexually abused by various family members and others while in residential placement.
The relationship between the DG and the plaintiff was a significant one. It is a relationship which, so long as it subsists, is recognised as conferring rights in the guardian in respect of the custody and upbringing of a child.[2]
[2] Youngman v Lawson [1981 1 NSWLR 439, 455 (Youngman).
In SB v State of New South Wales,[3] Redlich J said:
… The rights of a guardian may be exercised by him or her having actual physical custody or they may be exercised by such custody being placed with others. Whether the placement be casual, temporary or of a more extended nature, the legal authority of the guardian over the child remains. Such authority subsists until displaced by a court order or the operation of a statute.
[3] SB v State of New South Wales [2004] VSC 514; (2004) 13 VR 527 [110] (SB).
The plaintiff has legal standing to bring this action relating to conduct that occurred many decades ago by reason of the amendments made to the Limitations Act 2005 (WA) on 1 July 2018 that followed the National Royal Commission into Child Sexual Abuse.[4] A legislative amendment was made enabling a person in the position of the plaintiff to bring a cause of action that arose out of child sexual abuse without being jurisdictionally prevented from doing so by an expired limitation period.
[4] National Royal Commission into Child Sexual Abuse on 13 January 2013 - 15 December 2017.
The plaintiff contends that the State of Western Australia (first defendant) and the Children and Community Services Ministerial Body (second defendant) owed him a duty of care that was breached when he was negligently exposed to harm. He also contends that the first defendant is vicariously liable for the negligence of the DG and the Department to whom the DG had delegated certain functions.
His claim is for damages arising from the psychiatric and other harm that was caused to him by the sexual abuse he experienced while a ward of the State and otherwise under the supervision of the DG and the Department.
Specifically, the plaintiff's claim arises as a consequence of the sexual abuse that he experienced while in the care of:
(a)his stepfather, GN in April 1989 following the DG's decision to return him to reside with his mother and GN;
(b)his natural father MB in the early 1990s (who began to care for the plaintiff while he remained a ward of the State);
(c)EW and JW who were relatives who cared for him for a time while he was a ward of the State in late 1991/1992; and
(d)his maternal grandparents, Mrs BR and Mr BR.
The plaintiff claims that the decision‑making process that led to his placement with each of these carers was made in breach of a duty of care owed to him.
The plaintiff contends that the relevant sexual abuse against him was able to occur because of the abject dereliction of duties by the DG, the Department and the defendants who failed to ensure he was not exposed to an unnecessary risk of harm.
The plaintiff seeks judgment against the defendants in the sum of $3,084,769.79.
Summary of the evidence led at trial
The plaintiff called the following witnesses at trial:
(a)himself;
(b)Sally Landman/Woods (primary teacher);
(c)EW (foster parent);
(d)Dr Felicity Sewell (psychiatrist); and
(e)Mark Thompson FCA (chartered accountant).
In addition to these witnesses, the plaintiff relied upon a large number of exhibits including records of the defendants and in particular, contemporaneous documents on the Department's files.
The defendants called the following witnesses:
(a)Kris Csillag (social worker Department);
(b)Marija Radich (social worker Department);
(c)Richard Davies (former acting manager Department);
(d)Steven Robins (former acting divisional manager Department); and
(e)Dr Olivia Lee (psychiatrist)
Many of the facts in this case were not in issue.
The most significant challenge to the facts by the defendants was their non‑admission that the plaintiff was sexually abused after being apprehended by the Department.
Although the plaintiff was challenged on each of the allegations of sexual abuse that followed his apprehension by the Department, it was never suggested that he was lying regarding the other abuse. Nor was any evidence adduced by the defendants seeking to prove that the abuse did not occur.
The defendants instead sought to rely on inferences that the court could draw from asserted prior inconsistencies, a lack of immediate or proximate disclosure of some of the relevant abuse and submissions as to contended inherent improbabilities regarding some of the allegations.
Accordingly, the determination of the credibility of the plaintiff was critical to the factual findings in this case.
For the reasons that follow, I am satisfied that all of the sexual abuse alleged by the plaintiff occurred.
I find the first defendant, namely the State, liable on a vicarious basis for the proven negligence of the DG and the Department.
I dismiss the case against the second defendant.
Chronological narrative
The plaintiff, born on 10 January 1980,[5] was the first child of MB and JB. His father had previously been married to EW. MB and EW had two children, SW and KW.
[5] Exhibit 11.
The plaintiff's parents married two years later on 9 October 1982 and his sister, CB was born on 3 November 1982.[6] They lived in Bunbury and ultimately moved to 'Hornby's House'.[7]
[6] Exhibit 1.
[7] Exhibit 66; ts 602.
MB and JB separated on 7 September 1983 when the plaintiff was aged 3 and ultimately, they divorced on 12 March 1985.
Around the time of the separation JB had commenced a relationship with GN. JB and GN went on to have two children of their own together, TN, a daughter in 1984 and TYN, a son in 1998.
Following his parents' separation, the plaintiff moved to Bunbury with his mum and his sister. They attended South Bunbury Primary School, and the plaintiff was a quiet and withdrawn child.
Between September 1983 and around May 1988, GN was working in a FIFO capacity where he would live away from home for six weeks at a time. In May 1988 GN returned home to stay full‑time after leaving his employment.[8]
[8] Exhibit 216.
During the period of about 4½ years from September 1983 ‑ June 1988 when the plaintiff was aged between 3 and 8 years of age, JB had observed that GN frequently physically abused the plaintiff.
GN's physical abuse of the plaintiff caused JB to temporarily separate from GN on multiple occasions. On each occasion, JB would seek refuge with her mother, Mrs BR and her stepfather Mr BR. GN also sexually abused the plaintiff and CB during the time period.
The plaintiff told police on 27 June 1988,[9] that when he was 8 years of age, his stepfather, GN started playing with his penis. He said that he was forced to touch his sister's genitals and was threatened with violence if he did not comply. He told police that while his mother was out of the house, GN had removed his sister's clothes and GN had no clothes on except his shirt.
[9] Exhibit 2.
He spoke of GN playing with the plaintiff's penis in the loungeroom. Both of them were naked from the waist down. He said he asked GN to stop, but he kept going. He told police he complied because he knew what he was like and how he would react.
The plaintiff was exposed to other sexual abuse by GN toward CB during this time.
Some of the materials tendered at trial, taken from the Department's files, recorded aspects of GN's behaviour to the plaintiff between September 1983 and June 1988 (the pre-apprehension period). No claim is made for the abuse that occurred in this period, but it provides the relevant context to the events that followed.
The plaintiff had a limited recollection of the specific nature of GN's conduct toward him in the pre‑apprehension period. He did however confirm the accuracy of the contemporaneous records from the time including departmental, medical and police documents.
These materials make plain that GN had been violent toward JB and the plaintiff over much of the plaintiff's life and that there may have been other sexual abuse beyond that specifically detailed in the plaintiff's later statement to police.
The plaintiff noted in his evidence regarding this time period that GN was 'never nice to me … he would hit me, push me, call me names'.[10] This was something he remembered to be the case for as long as he could remember GN.
[10] ts 604.
The nature of the abuse included the sexual touching of both the plaintiff and CB in their genital areas and the molestation of CB including where the plaintiff was forced to watch and sometimes participate.
On 24 June 1988 the plaintiff reported to his mother that he and his sister, CB had been physically and sexually abused by GN for the past eight months.[11] His recollection at trial was that he told his mum that 'GN was assaulting us, beating me, hurting my sister'.[12] He also confirmed that the statement he made to the police was accurate.
[11] Exhibit 9.1; ts 608.
[12] ts 613.
His mother arranged for a medical examination of both children. They were then taken to the Waratah Centre in Bunbury where they were interviewed by a sexual assault counsellor, Peta Wootton.
Ms Wootton then made a report of abuse to the Department and spoke with one of the case workers in the Bunbury office, Kris Csillag. Mr Csillag met with the plaintiff for the first time on 24 June along with his co‑worker Ms Wootton.
The plaintiff's mother agreed to take him and his sister to their maternal grandmother's house in Boyanup and agreed to meet with police.
Ultimately, the plaintiff made a witness statement to police where he disclosed the sexual abuse against himself and his sister.[13] At trial he confirmed that this statement was accurate.[14] His sister also made a statement to police.[15]
[13] Exhibit 2.
[14] ts 616.
[15] Exhibit 3.
Following the making of the statement to police, the plaintiff stayed in Fremantle with his maternal grandmother for a couple of nights before returning to Bunbury with his grandparents, Mrs BR and Mr BR. Mr BR was his stepgrandfather.
On Saturday, 25 June 1988 Mr Csillag was advised by Bunbury police that GN had contacted them denying the allegations.[16] Mr Csillag discovered that JB and the children were at Mr BR and Mrs BR's house in Boyanup rather than in Perth, and that JB had spoken to GN about the children's allegations. At this point Department records reflect that JB was acting protectively toward the plaintiff and his sister.
[16] Exhibit 218.
Mr Csillag said to JB that GN was to have no contact with the children until the matter could be fully investigated. JB agreed, but said that she had come to believe that the plaintiff was 'making up' the allegations. Mr Csillag said that the matter would be followed up on Monday.[17]
[17] Exhibit 218.
On Monday, 27 June 1988 Mr Csillag asked department social worker Ms Anne Holloway to interview the plaintiff and CB to evaluate their allegations.[18] Ms Holloway interviewed CB, together with Ms Wootton.[19] Ms Holloway then separately interviewed the plaintiff. Following those interviews, Ms Holloway and Mr Csillag told JB that they believed the children had been sexually abused and were at serious risk.
[18] Exhibit 219, Exhibit 122.
[19] Exhibit 122.
Mr Csillag testified that Ms Wootton also believed the children regarding the allegations against GN. He said he had worked with her for between 6 and 12 months and knew that she was skilled in child interviews. He had no reason to doubt her judgment.[20]
[20] ts 2097.
Over the course of the weekend Mr Csillag continued to emphasise to JB that she should not allow any contact with GN. She had started to disbelieve the children but reassured Mr Csillag she would not allow contact.[21]
[21] Exhibit 214; ts 2102 - ts 2103.
The matter was reported to police. Mr Csillag said it was the Department's policy to notify the police of all cases of alleged sexual abuse.[22] Police officers from Bunbury attended the Department and interviewed the plaintiff and, separately, CB, in the presence of Ms Wootton and Ms Holloway.[23] No charges were laid at this time (nor in fact at any time).
[22] Exhibit 10 Bunbury Children's Court before Magistrate Fisher 1 September 1988; BCC ts 64.
[23] Exhibit 2; Exhibit 3.
By 27 June 1988, Mr Csillag became concerned that the plaintiff's mother was not going to act supportively as she intended to return to GN. He told JB that in this circumstance there would be no other option but to apprehend the children as a return to GN would not be in their best interest.[24]
[24] ts 1942.
Mr Csillag was aware that around this time JB had started to vocalise that the children were making the story up. He was of the view that the children were telling the truth.
On 29 June 1988, Mr Csillag spoke to Dr Humphries regarding the children's attendance on her and obtained information from Dr Humphries as to the prior relevant medical history concerning CB, which tended toward revealing sexual abuse of her.[25] None of the witnesses had any specific memory of this but the documents tendered in this regard speak for themselves. The doctor's notes were summarised into a file note and it is not clear what, if anything, was done with this information by Mr Csillag nor by the Department.
[25] Exhibit 212.
First apprehension of the plaintiff
On 1 July 1988, JB told Mr Csillag that she intended to return to living with GN together with the plaintiff and CB.[26]
[26] Exhibit 220.
On 29 June 1988, Mr Csillag was informed by police that they would not be pressing charges, but Mr Csillag believed the allegations made by the children were true.[27]
[27] Exhibit 10, page 58; ts 2122 - ts 2123.
Mr Csillag testified that JB believed that the decision by the police not to lay charges meant that the abuse by GN had not occurred. Mr Csillag testified that this was not correct and indeed his evidence was that the police position at that time regarding child abuse meant that it was not unusual for charges not to be laid, even when the Department considered that the abuse had in fact occurred.
Mr Csillag said he then lodged an application seeking an order committing the children to the care of the Department pursuant to s 30(1)(a) of the CWA.[28] He was doing so as a functional delegate of the DG and he was required to do this because the children's physical and moral welfare was in jeopardy. Further, it was necessary because their mother was not acting protectively.[29]
[28] Exhibit 5.
[29] ts 2088.
The plaintiff who was by then aged 8 and his sister who was aged 5 were thereby formally apprehended by the Department, in exercise of a power conferred under s 29 of the CWA. A care and protection application and apprehension order proceeding were commenced on this day.[30]
[30] ts 2156.
Mr Csillag placed the children with Mrs BR and Mr BR (maternal grandparents) even though Mrs BR was taking the side of her daughter who was denying the allegations. Mr Csillag noted that Mrs BR was herself hostile and doubtful of the children's allegations.[31]
[31] ts 2121.
Mr Csillag testified that there was a risk that the children would receive pressure in relation to their allegations by Mrs BR, but he placed the children there as his priority because at that time, the departmental policy was for the children to be with a family member.[32]
[32] ts 2130, ts 2190.
Contact with their mother was encouraged in this time period.[33]
[33] Exhibit 235.
On 13 July 1988 Mr Csillag collected the children from Mrs BR and Mr BR and placed them in foster care with WM and SM.[34] While unsure, his best recollection at trial was that this occurred because of health concerns in relation to Mrs BR and Mr BR.[35]
[34] Exhibit 233.
[35] ts 2139 - ts 2140.
A letter from Mr Csillag to WM and SM dated 12 August 1998 records that WM and SM were willing to commit to providing care to the plaintiff and CB for a period of six months.[36]
[36] Exhibit 213.
On 14 July 1988 a letter was sent to the plaintiff's school by the Department confirming that the DG was now the guardian of the plaintiff and his sister.[37]
[37] Exhibit 234.
On 15 July 1988, Mr Csillag conducted a home visit to WM and SM's home. He said, prompted by Department records, that he spoke with each child separately. The plaintiff told Mr Csillag that GN had threatened him by a 'I'm going to get you' sign with his fist and intimated that he was 'going to get him'.[38] Mr Csillag agreed that this highlighted the importance of keeping the plaintiff away from GN.
[38] Exhibit 233; ts 2142 - ts 2143.
On 20 July 1988, Mr Csillag prepared a witness statement in support of the care and protection application.[39]
[39] Exhibit 214; ts 1946.
At a further visit to WM and SM, Mr Csillag could not recall what was said by the children, but recalled that they wanted to return home to their mother. Significantly, he said that going forward, the goal was clear that the plaintiff wanted to return home to his mother even if she was still living with GN.[40]
[40] Exhibit 233; ts 2145.
This evidence by Mr Csillag regarding the plaintiff's desire to return to his mother and his testimony that family reunification was the goal, became a reoccurring theme underlying the decisions made by the Department in relation to the plaintiff from this time onward.
It was clear throughout the evidence of all of the Department witnesses and their contemporaneous records that the Department prioritised family reunification, even if it was to occur in circumstances of potential risk to the plaintiff.
On 27 July 1988, at a departmental meeting with GN and JB, Mr Csillag suggested GN could move out. Both reacted angrily to this suggestion and refused.[41]
[41] Exhibit 233; ts 2146.
On 3 August 1988, Mr Csillag became aware that JB had attended the plaintiff's school and said to the plaintiff to 'tell them all it's a mistake. The case will get thrown out of the window. You might be allowed to go home but dad will have to think about it'.[42] The plaintiff went to the sick room after his mother's visit.
[42] Exhibit 233; ts 2150.
JB had also called the Department on several occasions regarding the plaintiff retracting his allegations against GN.[43] He was also informed that the plaintiff wanted a meeting with him to 'get all of the bad stuff out of my head'.[44]
[43] ts 2153.
[44] Exhibit 233, page 3, par 3.
On 23 August 1988, the children's father MB had his lawyer write to the Department regarding his interest in the care and protection application. At this time, he was in prison for a drink-driving offence for which he was to be released on 10 October 1988.
Commencement of Children's Court proceedings
On 1 September 1988, the first stage of the Children's Court care and protection hearing before Magistrate Fisher in the Bunbury Children's Court commenced.
Mr Csillag testified as to the circumstances and said that he firmly believed the children's allegation of sexual assault against GN.[45]
[45] ts 2098.
Although Mr Csillag had no independent recollection, he confirmed in evidence that he had been aware that CB had suffered a vaginal injury in 1986 and 1987. Dr Cottee had testified in the Children's Court proceedings that the vaginal injuries were consistent with a deliberate and forceful entry of an object into her vagina.[46]
[46] Exhibit 212; ts 1603 - ts 1605.
Mr Csillag confirmed that the children were not provided with an independent lawyer nor advocate despite the procedures saying this should be done where possible.[47]
[47] Exhibit 170, page 50; ts 2166.
On 2 September 1988, a psychiatric report was obtained from Dr Pauline Stevenson by the Department in relation to the plaintiff. This detailed, inter alia, the past violence to the plaintiff by his natural father, MB, along with the physical and sexual abuse committed by GN.[48]
[48] Exhibit 237.
This report included a reference to the plaintiff's mother having been touched between her legs as a child by her stepfather, Mr BR. This was an important piece of information given that the plaintiff had already been placed briefly into the care of Mr BR and Mrs BR and notwithstanding this information, the Department continued to allow the plaintiff to stay with them.
Mr Csillag testified that at the time he had not noticed this information about Mr BR and said the first time he had consciously read this was in preparing for this proceeding. He agreed with the plaintiff's counsel that this information was important and if noticed it would have involved an investigation into the matter at the time.[49]
[49] Exhibit 237; ts 2158, ts 2160, ts 2161.
For reasons that will become relevant in due course, in this same report there were references to the plaintiff having been physically abused by MB.[50]
Second Mr BR and Mrs BR placement
[50] Exhibit 237; ts 2160 - ts 2161.
On 6 September 1988, JB requested that the plaintiff and his sister be moved from WM and SM's care and returned to Mrs BR and Mr BR. Mr Csillag said he took this request to his supervisors and the legal department.[51]
[51] Exhibit 221; ts 2043, ts 2044.
Mr Csillag said that he did not believe at the time that the move was risky, despite Mrs BR's disbelief of the abuse allegations and what was mentioned in Dr Stevenson's report (which he had not noticed at the time).[52]
[52] Exhibit 237; ts 2160.
Mr Csillag recommended that the children be returned to live with Mrs BR and Mr BR even though there was no evidence suggesting WM and SM could not continue caring for the children.[53] He said that there were a number of reasons for this decision, but underlying it, was his view and the Department's that family members were favoured as foster parents to maintain the family network. Both he and the Department considered that it was best to keep families together.[54]
[53] Exhibit 221.
[54] Exhibit 215; ts 1948 - ts 1950.
This departmental priority of family reunification seems to have operated in a significant way in the mind of Mr Csillag when making care recommendations in relation to the plaintiff. Looking back in hindsight, it is clear that 'red flags' were either missed, ignored or given less weight by the Department than they should have been in order to advance the family reunification goal. Having said this, the DG remained the guardian and accordingly, all of these decisions were his. It was ultimately for the DG to be satisfied as to the recommendations of the Department and not simply adopt them without thought.
This second placement with Mrs BR and Mr BR commenced on 1 November 1988 and continued until 14 April 1989 when the children were returned then to their mother and GN.
On 8 November 1988 Mr Csillag completed a foster application assessment relating to Mrs BR and Mr BR's continued care of the children.[55]
[55] Exhibit 215; Exhibit 216.
After April 1989 the plaintiff was not again formally placed with Mrs BR and Mr BR, but at various times during his wardship he was allowed to visit them.
During the time spent with Mrs BR and Mr BR, the plaintiff testified that he was subjected to sexualised conduct at the hands of both Mrs BR and Mr BR. This included being forced to play sexualised games with them, being sexually touched by both Mrs BR and Mr BR and being required to watch pornographic material.[56]
[56] ts 733 - ts 734, ts 745 - ts 746.
He said that this conduct was perceived by him at the time as not being particularly wrong nor inappropriate, as they were otherwise caring of him and the conduct was not accompanied by violence nor cruelty.
Second part of Children's Court proceedings and decision
The care and protection proceedings initiated by Mr Csillag on behalf of the DG continued in the Children's Court at Bunbury before Magistrate Fisher in September and October 1988.
The Children's Court heard evidence of a number of witnesses from the Department. These included Dr Humphries, Ms Wootton and Ms Holloway and Mr Csillag. Police Constable McMahon who interviewed the children on 27 June 1988 was also called to give evidence. On behalf of JB and GN the witnesses included themselves, Mrs BR and a psychiatrist, Dr Stevenson.
On 5 December 1988, the learned magistrate, having been satisfied that the plaintiff and his sister had been sexually abused by GN, found that they were children who were in need of the care and protection of the State. Specifically, he concluded:[57]
I am, having heard the evidence, satisfied as to the veracity of the children's allegations and reject the denial of and the belief of JB that no sexual interference occurred.
[57] Exhibit 13, page 11.
Wardship - and return of children to JB and GN
Following the plaintiff and his sister being declared to be wards of the State, the Department held an initial case conference on 20 December 1988. This was attended by Mr Donald Punch in an acting supervisor capacity and Mr Csillag. The details of this conference were the subject of a detailed memorandum kept on the Department files.[58] To the extent reference is made to Mr Punch's involvement, it is noted that he was not called as a witness at trial and, accordingly, this information emerges from the evidence of other witnesses and the exhibits.
[58] Exhibit 216.
GN, JB and Mrs BR were invited to attend for part of this conference. This was in circumstances where only a few weeks earlier, a magistrate had found that GN had sexually abused both the plaintiff and his sister and that the children needed to be removed from their mother and GN for their own protection.
Mr Csillag testified that the long‑term goal he and Mr Punch agreed to, was for family reunification. This is consistent with the contemporaneous Department records. Mr Csillag indicated that this was what the children wanted and what their mother and GN also wanted.
On any assessment of the circumstances, by this point in time and even allowing for the benefit of hindsight and a greater level of community understanding regarding child sexual abuse, the approach recommended by the Department and adopted by the DG was startling and incomprehensible.
A magistrate had determined, only weeks earlier, that GN had sexually abused, both the 8‑year‑old plaintiff and his 5‑year‑old sister. GN, JB and Mrs BR did not agree with this finding, and all denied that GN had abused the children. None of them, accordingly, could be trusted to act protectively toward the plaintiff. Mrs BR's husband had allegedly sexually abused JB in the past.
The evidence adduced on behalf of the defendants failed to elicit any satisfactory reason why JB and GN were given an opportunity to attend that conference, let alone as to why the goal of the Department and endorsed by the DG, would be to reunify the plaintiff and his sister with their abuser.
Mr Csillag testified that it was standard practice to invite parents to a case conference, but agreed with hindsight that in the circumstances this was not a good decision. He refuted the suggestion that it was an appalling decision to have them attend, as suggested by the plaintiff in cross‑examination.[59] With no hesitation, I readily consider it was indeed an appalling decision. Standard practice should always give way to reasoned judgment. By the same token Mr Csillag was a relatively young and junior social worker. The decisions made along the way and ultimately, were not his to make. The failure of those who supervised him and the DG who was the plaintiff's guardian is where the focus should lie.
[59] ts 2168 - ts 2169.
Mr Csillag confirmed that by the time of this meeting, he remained of the view that the abuse by GN had occurred. This is incongruent with the recommendations he and Mr Punch and others in the Department continued to make and the decisions made by the DG following those recommendations.
Mr Csillag agreed that his desire for reunification was heavily influenced by the stated desire of the children to return to their mother. The way in which he explained his recommendation was as follows:[60]
Essentially, the six months ... that I'd been working with the children, ... they'd expressed an extremely strong desire to go home, and that - that desire was getting stronger, and … - there were starting to become consequences of them not going home, in terms of difficulty in maintaining them in placements and that sort of - that sort of thing. I formed the view that it was going to be extremely stressful on the kids to continue to try and keep them away from their mother. So what I came to the conference with was a - a desire to get a plan together that would meet the children's needs to go home but at the same time ensure their - their protection. And that's what I believe at that stage, back then, we came up with in the case conference plan.
[60] ts 2176.
At this meeting, the Department devised a plan that would apparently minimise the risk to the children but allow them to return to their mother and GN. This plan was to achieve this in a number of ways including to have the children remain with Mrs BR and Mr BR for a time. Neither Mr Csillag nor, to his knowledge Mr Punch, had noticed the sexual abuse allegation against Mr BR by JB that formed part of the records that were available to them. The DG did not separately notice this. Thus, even this protective step was in fact not protective at all. Mr Csillag agreed that if the information contained in the report on file had been noted by himself or Mr Punch, then there would have been no recommendation of placement of the children with Mrs BR and Mr BR.[61]
[61] Exhibit 216; ts 2181 - ts 2182.
The plan accordingly, was to encompass the following:
(a)a counselling/education program that would be focused on certain specified topics (and which would involve the children attending counselling with their abuser GN);
(b)provision for contact between the children and GN which would be organised by a child protection worker (again notwithstanding the fact that only weeks ago a magistrate was satisfied he had sexually abused the children); and
(c)there should be a case review in 4 months' time to confirm return of children to parents' care'.
This plan was devised notwithstanding the serious sexual offences that a magistrate was satisfied had been committed by GN against the two children. Further, this was in circumstances where GN and JB continued to deny that GN had engaged in any abuse of the children. This was also in circumstances where as a consequence of the sexual abuse and the lack of protective behaviour by their mother, the children were considered by the Children's Court to be at risk and in need of the protection of the State.
Mr Csillag said that the plan recommended to the DG by himself and Mr Punch was to allow reunification in a 'structured therapeutic way'.[62]
[62] ts 2184.
At trial, this disturbing decision‑making process was sought to be justified by the suggestion of a developing understanding of the nature and effect of child sexual abuse between the late 1980s and today, both by child protection workers and police.
In my view, even the most rudimentary understanding of child sexual abuse and the knowledge of the attitude and behaviour of the plaintiff's mother and GN, following the disclosure of the abuse would have revealed the patent flaws in the Department's and the DG's approach. A goal of reunification in the short term (if at all) for two young, vulnerable and damaged children with the perpetrator of their abuse and their disbelieving non‑protective mother would be to place the children at an unacceptably high level of risk of serious harm.
I find that from the time of this meeting, up to the implementation of the decision to return the plaintiff and his sister to the home of GN and JB, the DG through the delegated actions of the Department was grossly negligent in circumstances where there was not only a foreseeable risk of harm including sexual abuse to the plaintiff, but where this was in fact very likely.
Between 12 January 1989 and 29 March 1989, the Department arranged for various family counselling sessions with the plaintiff and his sister. These sessions took place with a departmental counsellor, Shirley Cook. In these sessions, GN and JB were present and continued to deny any wrongdoing by GN. No separate counsellor, nor the offer of independent advice was provided for either child.[63]
[63] Exhibit 217.
By this time, undoubtedly, the 8-year-old plaintiff missed his mother and wanted to live with her again. This was of course to be expected but what would not be expected was the DG to adopt a recommendation that relied on this fact at the expense of protecting the plaintiff. As a young and lonely boy, the plaintiff was unable to recognise the difference between what he wanted and what he needed. That was not for him to reason with. That was the role of his guardian and those in the Department charged with his practical care, safety and well-being.
The departmental psychologist from this time period, Shirley Cook, was not called at trial. The papers reveal that she was engaged to provide counselling. This was however, in fact, conducted as 'family counselling'. The consequence of this was that the plaintiff and his sister were required to engage with their abuser, who maintained a stance of denial, and their mother who was supporting their abuser.
Ms Cook's report dated 7 April 1989, following these family counselling sessions included her opinion that 'it would be appropriate and desirable to return the plaintiff and CB to the care of their parents at this point'.[64] No adequate explanation for this conclusion was provided in the report and this recommendation stood in stark contrast to all the information to the contrary that was known to and otherwise available to the DG and to the Department.
[64] Exhibit 123.
The DG and officers from the Department chose to act on this recommendation, despite the fact that this meant returning the plaintiff and his sister to the home of their abuser a mere four months after a court had made findings regarding the serious sexual abuse of the children and the absence of a protective parent.
This decision was made, despite the fact that the abuse by GN had been against both children, it had been physical and sexual, and it had occurred on more than one occasion. This decision was made, in spite of the fact that nothing of any relevant consequence had occurred since the abuse took place that would make this arrangement now safe. GN and JB continued denying any wrongdoing. Aside from platitudes and indications of trying harder, the risks to the children and the reasons to take them into care had not changed at all.
On 12 April 1989 a case review conference took place. This was attended by social work supervisor Peter Varga, Shirley Cook, Mr Csillag and, for part of the time, JB and GN.[65]
[65] Exhibit 158, ts 1543 - ts 1544.
Mr Csillag did not independently recall the conference, although he accepted he attended. He said that JB and GN would have been in attendance for the initial part of the conference to have input into a case review plan. The outline of the proposed plan would likely have been put to them to get their reaction, they would have been excused, and Department members remain to make the plan.
He admitted that with hindsight the plan was 'lacking'. He considered that in light of modern views on child sexual assault and domestic violence, the potential for re‑abuse was huge. He said that a plan like this would never be endorsed now.[66]
[66] ts 1966.
He testified that he still believed GN had abused the children and he knew then that there was still risk of further abuse. He did however, consider that the risk had reduced because GN had been exposed following the previous abuse.[67]
[67] ts 2191.
It was ultimately resolved at that conference that the plaintiff and his sister should be returned to JB and GN as soon as possible.[68] The memo accompanying this decision sets out the patently flawed reasoning supporting this astounding decision that includes the following:
[68] Exhibit 158.
The direction that we have taken with this case following the magistrate's decision on 5 December 1988 can be summarised in point form as follows:[69]
[69] Exhibit 158.
1.Only GN and the children actually know what happened.
No-one else was present.
2.The fact that the allegations were made is an indication of problems with what we have termed the 'executive functioning' of the family. This is, JB and GN did not have their act together as partners or as parents.
3.Seen in that context, it is imperative that JB and GN work on their relationship in order that similar allegations do not recur.
4.The children were removed from their home, not because they told lies, but because GN and JB were having trouble functioning as parents.
…
Finally, this approach enables us to encourage JB and GN to focus on their relationship and to begin to look at their roles as individual spouse and parent.
…
I believe it is now an appropriate time for the children to be permitted to return home. Both [the plaintiff] and [CB] are stating clearly their wish to return home and JB and GN are keen on them returning home. There appear sufficient safeguards in place to alert us should there be a further instance of abuse. These safeguards include regular visits by Department for Community Services, and the fact that both children will be visible at school. Also, both [the plaintiff] and [CB] are able to contact supportive adults should the need arise.
It is planned that both Shirley and I continue our involvement with the family. We have negotiated with JB and GN to adopt more of a training role and have identified several areas of concern. These include Communication, Assertiveness, Parenting Issues, Couple and Personal Development and Family Sexuality.
It is envisaged that by December 1989 we may be in a position to consider termination of wardship. This will, however, be dependent on the family's progress and cooperation.
Return to GN: 14 April 1989 to 8 May 1989
On 14 April 1989 the plaintiff and his sister, while still remaining wards of the State, were returned to live with their mother, GN and their two younger siblings.
The children changed schools and moved into a house in Bunbury. The plaintiff testified that he was unhappy at the decision to move back with GN. What he wanted was to be able to live with his mother.[70]
[70] ts 636.
The plaintiff testified that as soon as he returned to the Bunbury house the physical and sexual abuse re‑commenced. GN was now much rougher and more violent than he had been previously.
The plaintiff's evidence about the abuse he suffered during this time was harrowing. The raw emotion and pain that was evident in his voice and on his face was confronting. He spoke of how he had previously spoken up and told those in authority what had happened to himself and his sister. He had done all that was asked of him. Yet the outcome for him was that he was being returned to his abuser, and he was now at greater risk than ever.
As he gave evidence regarding this time period, he had a detached affect to some of this evidence. He often spoke as though he was back in the moment and was a spectator watching as the events unfolded.
The manner in which he testified and what he said, particularly regarding this time period, was a quiet, unembellished account of traumatic events that conveyed the story of a man who had a lived experience of what he was discussing.
He was asked to describe what it was like to live with GN on this second occasion, he said it was tortuous.[71] He explained that 'life was full of abuse, nastiness, hate, sexual abuse'.[72]
[71] ts 627.
[72] ts 628.
The plaintiff said that no-one from the Department had given him any strategies or instructions regarding how to keep himself safe. He was given no plan as to what to do if GN again threatened or hurt him.[73]
[73] ts 635.
He recalled a particular incident of abuse that took place at a fishing harbour about halfway through this stay with GN and his mother. GN had taken him fishing and they were perched on the rocks in the outer harbour. GN 'penetrated me in the bum with his penis … and fingers'.[74] 'I was hit, punched and forced into the rock while he was doing it. I remember the more I made noise the harder he pushed my back into the rock or my chest'.[75] During the incident he was told by GN to 'shut the fuck up'.[76]
[74] ts 628 - ts 632.
[75] ts 631.
[76] ts 630.
The plaintiff said it was 'horrible. I felt like I was a nothing'. He said it made him feel like he was 'only put on earth for that reason. … I felt like a piece of shit'.[77]
[77] ts 632.
He also recalled three or four occasions where GN had digitally penetrated his anus with his fingers. This began within days of returning to the Bunbury house.[78] During these times he was often told by GN to 'shut the fuck up' and to do what he was told.[79]
[78] ts 629.
[79] ts 630.
He said the digital penetration was painful. Typical of his tendency to understate some of the worst abuse during his childhood, when asked how he felt while it was happening, he said it was 'not great'. The plaintiff explained that violence would occur if he made a noise or anything 'not nice'.[80]
[80] ts 632.
The plaintiff stated that his sister was not the subject of any violence and was generally favoured by GN and his mother. Despite this he said that she was also sexually abused during this time.[81] He watched her being penetrated by GN who was engaging in penile and vaginal intercourse with her, and he would watch her scream and cry.[82]
[81] ts 632.
[82] ts 634.
He said that he was forced to do sexual things with CB including placing his finger into her vagina and GN would also place the plaintiff's penis into CB's vagina.[83] These events occurred when his mother was not at the house.
[83] ts 634.
He said the abuse inflicted on him during this time involved being molested 'anally which was painful, very rough, nasty. It involved being punched and yelled at while it was happening'.[84] He remembered being touched on his penis.
[84] ts 628.
He also recalled specific acts of violence that were separate to the sexual assaults. He said, 'if I laughed at the table or put my hands or wrist on the table he would throw a huge salt and pepper shaker at me'.[85] He said he was sometimes 'punched repeatedly' and that 'this would occur in between the acts of sexual abuse'.[86]
[85] ts 631.
[86] ts 631.
The plaintiff said that during this period of time he was 'bashed every day', told he was worthless and 'I felt worthless'.[87]
[87] ts 635.
The defendants did not accept that the abuse occurred during this time. The plaintiff was cross‑examined consistent with this position although counsel was sensitive in the manner adopted in challenging the plaintiff in this respect.
The non-admission by the defendants of this abuse or indeed any other post-apprehension sexual abuse was explained as arising partly because of the lack of disclosure of this abuse by the plaintiff to anyone at or near the time of the events occurring.
Counsel put to the plaintiff the differences between the complaint he made following the initial abuse and the absence of a comprehensive complaint of all the abuse that followed the plaintiff's return to GN. The plaintiff spontaneously said: 'I had told my story and I was put back where everything had happened the first time …. It wasn't a nice feeling'.[88]
[88] ts 635.
When asked by counsel to describe his feelings for GN, the extreme pain and fury in his voice was palpable when he stated 'I hated him. I loathe him. I'm petrified of him'. The present tense of this statement was notable.
On 8 May 1989, JB told Mr Csillag that CB had alleged further sexual abuse by GN. This had apparently taken place the day after the Department returned the children to the care of JB and GN.[89]
[89] Exhibit 159.
Further inquiries revealed that GN and JB's daughter, TN had also been sexually abused by GN.
Mr Csillag took JB and all four of her children to a refuge on that day. The allegation of GN sexually abusing CB during the family reunification placement was reported to police. The police took statements from CB, JB's daughter, TN and the plaintiff. Ultimately, no charges were laid.
The plaintiff said little at this time of his own experiences at the hand of GN. On 18 May 1989 he did tell a Department worker that he was furious that it had happened again. He said it was not fair and that he and his sister were getting 'all the punishment' for the things done to them.[90]
[90] Exhibit 70.
The defendants suggested in submissions and implicitly in cross‑examination of the plaintiff that the reason little was said was because the plaintiff was in fact not abused again and certainly not in the manner and extent to which he now alleged.
The plaintiff explained the absence of a comprehensive complaint. He said that he learnt that complaining made things worse for him, not better. He had learnt that when he complained he was the one taken away and he was then unable to live with his mother. Undoubtedly, he also learnt that there was no‑one who could or would keep him safe and protect him.
From the perspective of the plaintiff, those who were legally charged with protecting him and looking after his best interests had returned him and his sister to their abuser which led to the plaintiff being punished for having complained and both of them being further abused.
JB, soon after the further abuse of GN was disclosed, decided once again to return to GN. The Department having finally now decided that they would no longer permit the plaintiff and CB to return to GN, JB decided to relinquish the plaintiff and CB to long-term foster care or adoption.
It is apparent from the Department records and Mr Csillag that no specific targeted counselling took place with the plaintiff or his sister during the period of the return of the children to GN.[91]
[91] ts 2246.
On 22 May 1989 the plaintiff and his sister were placed at the Canowindra Group Home (Canowindra).[92] The plaintiff did not remember specifically how he came to leave the Bunbury house, only that he did.[93] He had no recollection in fact of anyone from the Department visiting him while he was at the Bunbury house.[94] He considered that even if they had, they had not been able to protect him from GN.
[92] Exhibit 18.
[93] ts 635.
[94] ts 636, ts 635 - ts 636.
A few days later on 25 May 1989, at the first case conference held following the children's removal from JB and GN, a decision was made and implemented by Mr Varga for the children to remain at Canowindra. Mr Csillag, present at the meeting, reported that the plaintiff's mother was supportive of the children, but it was her intention to return to GN.[95]
[95] Exhibit 159; ts 2051 - ts 2053.
Both Mr Csillag and Ms Radich from the Department, were concerned at the meeting by the fact that there had been 're-abuse' of the children. A decision was made to investigate how this occurred.[96] By August 1989 Ms Radich had commenced as a field officer social worker in Busselton and was actively involved in the plaintiff's case.[97]
[96] ts 1548, ts 2051 - ts 2053, ts 2197.
[97] ts 1381 - ts 1384.
On 26 May 1989 Mr Csillag wrote to GN and JB and advised that the children would remain at Canowindra while the re‑abuse was investigated.[98]
[98] Exhibit 239; ts 2197.
From this time Ms Radich recalled that she would liaise with the police and the court regarding the allegations made to them by both CB and TN. Her recollection was that police were generally hesitant to charge alleged perpetrators accused of child sexual abuse and even more so in the regions at that time.[99]
[99] ts 1390 - ts 1391.
She said that while it was not easy to find foster carers in the Busselton region there was assistance available from a substitute care officer. She said that 'the priority would be to find someone within a child's family that was safe, unless … the matters were serious and we didn't trust the family to care for the child safely in the interim'.[100]
[100] ts 1398.
The plaintiff said that by this time he had become a quiet, withdrawn and an unhappy child.[101] His grades at school suffered as did his capacity to concentrate and maintain focus. He vividly recalled that the main memory he had from his time at Canowindra was that he was not there with his mother. He missed her terribly. He was lonely and went from having a family to 'not having anything'.[102]
[101] ts 637.
[102] ts 638.
Just as had happened the first time, although he and his sister were abused by GN, it was the plaintiff and his sister who were removed from their home, their mother, their siblings and the family life they so desperately craved.
For a short time, namely between 15 September 1989 and 4 October 1989, the children were able to live with their mother as she had moved out from GN[103] but ultimately the children were returned again to Canowindra.[104] This was after the plaintiff recalled his mother telling 'welfare' that she did not want him.[105] He felt 'horrible' about being returned to Canowindra, particularly in such terrible circumstances.[106]
Relationship with MB - Natural father
[103] Exhibit 17.
[104] Exhibit 18.
[105] ts 639.
[106] ts 639.
In late 1989, consistent with the approach of the Department and the DG at that time, Mr Csillag made contact with MB regarding the plaintiff and his sister.
Mr Csillag's initial impression of MB was that he was a 'rough individual' who seemed like a 'genuine bloke'.[107]
[107] ts 2060.
He considered MB's recent traffic offences on 10 May 1989 to be on the lower end of the scale. At the time he said that he did not consider those convictions and the earlier drink driving and driving without a licence offence to be relevant to the safety of the children in terms of a possible placement with MB.
When the record of MB was shown to Mr Csillag, he said that he was unsure if the Department had access to this record at the time. He did concede that with hindsight the nature of the record suggested MB may be unreliable and could not be trusted.[108]
[108] ts 2199 - ts 2201.
Ms Radich readily accepted that with hindsight the record ought to have caused the Department concern about MB's suitability as a carer, especially the drink driving and driver's licence convictions.[109]
[109] ts 1580.
It is not in contest that by this time MB had a criminal and traffic record including matters of some recency. He had been previously imprisoned and had a history of allegations of violence toward JB and the plaintiff. He had been the subject of a violence restraining order taken out by the plaintiff's mother. She had reported that he had regularly beaten and mistreated her.
On Christmas Eve of 1989, while living at Canowindra, the plaintiff came to meet his natural father for the first time since he was very young. His mother had previously warned him against his father and said he was evil, always in jail and that he was to be feared. At the time of their meeting, MB was visiting the plaintiff and his sister at the home of the plaintiff's paternal grandparents.
Following this time onwards, the plaintiff and his sister would see their father every second weekend.[110] They would go to his house in Busselton and stay for the whole of the weekend.
[110] ts 641.
The plaintiff recalled that MB was living alone at the house but that he had lots of friends who would attend the house including for long periods of time while both kids were there. The plaintiff recalled these friends as being 'alcoholics and rough people'.[111]
[111] ts 643.
These weekend parental visits usually involved parties held at the home with MB and his friends. The plaintiff recalled people being too drunk to leave and passing out in the lounge and the backyard.[112]
[112] ts 643.
On any analysis this environment was inappropriate for two young children to be in, let alone children as vulnerable as the plaintiff and his sister.
On 23 February 1990, Mr Csillag interviewed JB and Mrs BR who both confirmed they did not want to resume care of the children. They did however, express serious concerns as to MB being the carer given his criminal history, his past violence and his lack of contact with the children over the years.[113]
[113] ts 2016 - ts 2062.
Mr Csillag met with MB to discuss these concerns. He then prepared a handover memo to Ms Radich where there was mention of some of the concerns. Ms Radich agreed she personally held serious concerns about MB given his violence and his record but said that a 'weighing process' was necessary.[114]
[114] ts 1581.
On 2 March 1990, the case file for the plaintiff was transferred to the Bunbury office from Busselton with Ms Radich actively working on the plaintiff's case.
On this same day the Department held a case conference where Ms Radich and Mr Csillag were both present along with Steven Robins who was present as the chair of the meeting and was a supervisor.
Mr Robins explained that he and Mr Csillag had worked together for some time. He recalled that at around the time of this meeting, perhaps late 1989 or early 1990, the office split. The Bunbury office would focus on Bunbury and the South West District would take over Busselton, Collie and Manjimup.
Mr Robins transferred to the South West District and moved offices to Collie.
A plan was endorsed for the plaintiff and his sister to be further reunited with MB. He had by this time been expressing an interest to the Department in relation to gaining custody of his two children.
Ms Radich said it was her role to set up and facilitate the meeting.[115]
[115] ts 1402.
The report of the meeting includes that JB was told she should tell the children they would be better off living elsewhere. As Ms Radich conceded, this meant that the children were particularly vulnerable by this stage.[116]
[116] Exhibit 139; ts 1560.
Mr Robins was questioned about the record of MB and said that he considered that traffic offences did not paint him as a threat to children.[117]
[117] ts 2299.
The notes of the case conference disclose the view taken that 'there is no current evidence to suggest that the children would be at risk in their father's care' and that their mother did not wish to care for them.[118]
[118] Exhibit 139.
JB had already conveyed her concerns regarding MB to the Department.[119]
[119] Exhibit 139.
The report and the evidence, in particular, from Ms Radich and to some extent from Mr Csillag, makes plain that there were real risks known to the Department that were readily apparent in placing the children with MB given his violent history and his record. Mr Robins was quite dismissive of these matters in the course of his testimony.
Mr Csillag could not recall what investigations, if any were done regarding the visitors to MB's house or any assessment regarding drug or alcohol use at the house.
Mr Csillag advised MB's lawyer that the Department would oppose him getting custody/guardianship of the children at that time.[120] It was, however, the case that they also told him that they would only oppose this until the children were settled in his care.[121]
[120] Exhibit 224.
[121] Exhibit 224.
Ms Radich, while a reluctant and at times resistant witness at trial, appeared to have strongly advocated for the plaintiff at this time and held and expressed significant concerns regarding the suitability of MB to care for the children.
Placement of children with MB
Notwithstanding Ms Radich's concerns and the obvious serious risk factors that either were or should have been apparent to the Department, and the DG on 11 April 1990 both the plaintiff and his sister were moved into the care of MB. Initially the DG remained the plaintiff's legal guardian.
While further Department meetings continued to occur, no action was taken to remove the children from MB.
Following this placement, the plaintiff testified that the living conditions at his father's house got worse. He said that the parties became more 'full-on over time'. He said more people would stay and not leave and that there were occasional fights.[122]
[122] ts 644.
He said that his father still worked at the market gardens although there was a period when he did not work and just drank.[123] The plaintiff said when MB drank, he was initially fun and funny and then would get drunk. He said he was a very different person when drunk.[124]
[123] ts 645.
[124] ts 648.
He recalled his father's cruelty at times. In particular, he recounted an occasion MB brought home a dog for the plaintiff and a cat for his sister. The plaintiff was and is a devoted lover of animals, especially dogs. He testified that his father would kick the dog and was a horrible man to animals. He killed CB's cat and his best mate's dog in front of the house.[125] The plaintiff said he called his father 'bullshit MB' as he was a compulsive liar.[126]
[125] ts 649.
[126] ts 657.
The plaintiff was attending a nearby primary school. He described himself as quiet and withdrawn and he said he did not click well with the other kids. He said he found it hard to focus on school but that at least it meant he could be away from his father.[127]
[127] ts 671.
In May 1990, about a month after the placement, the Department became aware that CB was presenting with a vaginal rash.[128] She had previously had a vaginal rash in a time period proximate to being sexually abused by GN.
[128] Exhibit 143, Exhibit 144.
By 22 June 1990 Ms Radich recorded that MB had been missing scheduled appointments with the Department.[129]
[129] Exhibit 163.
On 19 July 1990 it was discussed at a departmental case review that the children were becoming attached to their father and that he was anxious to take guardianship of the children.[130]
Assault upon CB
[130] Exhibit 146.
On 14 September 1990 CB was indecently assaulted by an acquaintance of MB, a man named SN. The plaintiff witnessed the offending and made a statement regarding this to the police.
In evidence, Mr Csillag accepted his account of the assault in departmental records as involving CB being 'grabbed between the legs by an uninvited guest' as insufficiently detailed.[131] On any account it was simply incorrect.
[131] ts 2219 - ts 2222.
Contrary to evidence given at trial regarding the departmental policy in relation to wards, the Department and DG determined that they would not report this incident to the police.
Ms Rapkins was told of the assault on 18 September 1990 and Mr Csillag was advised on 20 September 1990 when Ms Rapkins sent him a memorandum advising him.[132] The Department became aware that MB's friend SN was a known sex offender.[133]
[132] Exhibit 152.
[133] Exhibit 152.
On 26 September 1990, Ms Rapkins prepared a file note where she set out her concerns regarding the suitability of MB to care for the children.[134] This memorandum was provided by her to Mr Punch. Ms Radich by this stage held real concerns regarding the suitability of MB as a carer for the children. She raised again her concerns regarding the suitability of the children to be with their father.[135]
[134] Exhibit 153; Exhibit 125.
[135] Exhibit 150, also note Exhibit 154 and Exhibit 278.
These concerns by Ms Radich and Ms Rapkins as expressed were significant, evidence based and should have caused the DG to conduct an inquiry and to consider removal of the children from his care. It achieved neither of these things.
Despite the sexual assault and the content of Ms Rapkins' memo, on 27 September 1990 at a case conference, the DG on the recommendation of the Department decided that an extension of the period of wardship was unnecessary and that the wardship be allowed to lapse when it expired on 5 December 1990. Further, it was determined that MB was the appropriate carer for the children.[136] This decision is utterly impossible to understand, even allowing for the considerable benefit of hindsight.
[136] Exhibit 205.
In fairness to Mr Csillag, it needs to be noted that Mr Robins, Ms Rapkins, Mr Punch and Ms Radich amongst others were all involved in the recommendation process that followed, although Ms Radich was vocally opposed to the decisions made. Further, the DG as guardian acted on those recommendation despite the obvious risks.
At trial Ms Radich agreed that with MB's lack of attendance at appointments, his financial difficulties, the fact he was living with an unsuitable woman, the assault on CB causing bruising and scratching and MB's failure to report this accurately nor on time, meant this placement was not satisfactory. She agreed that the wardship should not have been allowed to lapse. Ms Radich volunteered that there was a more 'relaxed and forgiving environment' in those days, especially in 'the community' and sometimes the Department did not have the flexibility it needed to do what it wanted.[137]
[137] ts 1645 - ts 1647.
The Department documents tendered at trial reveal that others in the Department including Mr Csillag had concerns before the assault upon CB occurred. This was said to be broadly due to MB's attitude in relation to the Department and the children.[138] Yet the ultimate recommendation by Mr Csillag and approved by the DG was to allow MB to obtain full custody of the plaintiff and his sister and for the wardship to expire on 5 December 1990.
[138] Exhibit 151.
Mr Csillag noted that recommendations of this sort were not made by one individual in the Department. He said that the chairperson of the case conferences had the most weight in decision‑making. While he did make the recommendation to keep the children in MB's care and to assist in him gaining custody, the final decision was not his to make.[139]
[139] ts 2233 - ts 2234.
The decision to return the children to MB took place while Ms Radich was on leave.[140]
[140] Exhibit 278.
On 19 November 1990 Ms Radich sent a fax to Mr Punch outlining her concerns regarding MB's drinking, parties, the fact he was behind on rent, the contradictory experiences and explanations given by him to Department employees, the assault of CB, and the case conference supporting MB gaining custody while she was on sick leave. She said that she wanted discussion of these concerns at the case conference on 20 November 1990.[141]
[141] Exhibit 150; ts 1440, ts 1479, ts 1651 - ts 1652.
On 20 November 1990 Mr Csillag swore an affidavit supporting MB having guardianship of the two children and the wardship ending.[142] This affidavit is a startling piece of evidence given the context in which it came to be written and the information available to Mr Csillag and to others in the Department and the DG.
[142] Exhibit 166.
It was incorrect in material respects, as much as in what it did not say as in what it did say. Mr Csillag failed to raise in the affidavit any of the concerns raised including by Ms Radich, regarding the suitability of MB to care for the children. No‑one else from the Department nor the DG sought to correct this affidavit despite the Department records revealing their knowledge of the relevant circumstances pertaining to MB at that time.
Relevantly, in the very brief affidavit Mr Csillag swore the following on 20 November 1990 he said:[143]
[MB] has had the care of the children since 14 April 1990. I am satisfied that the children have settled in the care of [MB].
In my capacity as Child Protection Worker I have recommended to the director for Community Services that it is in the best interests of [the plaintiff and CB] to be given into the custody and guardianship of [MB], their father.
[143] Exhibit 166.
Ms Csillag agreed at trial that he signed the affidavit knowing that there was a certain amount of risk to the children.[144] While he did not personally write the affidavit, he accepted that he could have amended it before or even after signing it. This affidavit completely fails to make any mention of the myriad of serious issues and concerns that had arisen since 13 April 1990 in relation to MB. Not one of the serious issues from Ms Radich's facsimile to Mr Punch is referred to in this affidavit.
[144] ts 2239.
On 21 November 1990, Ms Radich, Mr Punch, Mr Varga and Mr Csillag formulated a plan to discuss the Department's concerns with MB (bearing in mind the lack of reference to any of these concerns in the Csillag affidavit). Ms Radich again raised her concerns regarding the suitability of MB.[145] It is notable that the Department's concerns regarding MB were sufficient to justify a meeting with him and yet insufficient to be referenced in an affidavit filed with the court the day before.
[145] ts 1468 - ts 1473.
A decision was made following the 21 November 1990 meeting to monitor the plaintiff's case after the wardship expired. No change of position occurred as a consequence of this meeting.
On 28 November 1990 Mr Csillag noted 'concerns of Radich dealt with' although no evidence was adduced as to precisely what this meant or whether or how they had been dealt with.[146]
[146] Exhibit 278.
On 5 December 1990, the DG, having decided not to seek an extension of wardship, allowed the wardship to lapse in relation to both the plaintiff and his sister. The two children were now fully under the care and control of their father although supposedly while under an unspecified monitoring arrangement by the Department.
The plaintiff testified that he found out that the wardship had ended when he attended the Bunbury welfare office and his father told him that he was 'not welfare anymore - you're mine'.[147]
[147] ts 658.
He said that the Department did not provide him with any instructions about what he should do if he ever needed them nor provide him with any contact details. He did not have a phone nor money to use a payphone. It is apparent that from his perspective, there was to be no departmental monitoring of him.
The children remained with their father in Busselton for a short time before the three of them moved to Collie. The plaintiff confirmed that while there, his father was not sexually abusive. He observed that MB was 'a lot better in Busselton than he was in Collie'.[148]
[148] ts 657.
Move to Collie
In either later 1990 or early 1991, MB made the decision to relocate to Collie and to take the plaintiff and his sister with him. The plaintiff was worried about the move as he was leaving his paternal Nana, his cousins and his aunty. He had a good relationship with his Nana.[149]
[149] ts 660.
A handover of sorts occurred within the Department, given the Department's apparent plan to continue to monitor the children. On 9 January 1991 Mr Csillag prepared a memo where he indicated that concerns had been raised regarding MB's suitability as a carer for the children. He found that the placement was going well despite some concerns.[150] He noted that the concerns had been documented and followed up and that he considered that MB was providing adequate care of the children.
[150] Exhibit 225.
It was not clear on what basis Mr Csillag reached that conclusion and his testimony at trial did little to clarify this uncertainty.[151] He was not sure what he had actually done to check on the children directly or indirectly and the records from that time do not provide any insight. It is not unreasonable to conclude from the absence of records that whatever was done, was minimal.
[151] ts 2075 - ts 2076, ts 2242 - ts 2243.
On 5 February 1991, SN, MB's friend who had sexually assaulted CB the previous year was charged with indecent assault. He pleaded guilty and was sentenced to 9 months' imprisonment on 12 March 1991.
On 19 February 1991, Ms Radich determined that there was no reason for the Department file for the plaintiff and his sister to remain open given the ending of the wardship and the placement of the children with MB. It is unclear what happened to the 'monitoring' proposal.[152]
[152] Exhibit 155; ts 1479 - ts 1480, ts 1665.
The plaintiff testified that things deteriorated significantly once they started living in Collie. He said that there were drunken brawls, and that MB was drinking sometimes every day all day. He said that he and his sister had to go to houses where their father would 'get on the piss' and this would usually be at night.[153] He recalled that his father did not work while they were living in Collie. He just drank.[154]
[153] ts 661.
[154] ts 662.
The plaintiff said that MB would allow him to play with friends if he was in the 'right mood' but 'the minute it wasn't it wasn't'.[155] He said MB would hit and bash him. He would be punished for unspecified wrongdoings and from his perspective everything was different in Collie. MB became nastier, had more control issues and played mind games. He would punch the plaintiff on his face and arms and back and strike whenever he could.
[155] ts 665.
In addition to this physical violence, it was while in Collie that his father began to sexually abuse him. He spoke of how MB would give him hickeys that felt 'really uncomfortable and horrible'.[156] He gave a vivid account of how the marks from these hickeys would be all over him, particularly his neck. He recalled that this led to him wearing a turtleneck top, scarf and full jumper in the middle of summer, as he was not allowed to let anyone see what MB had done to him.[157] He described these hickeys as involving MB putting his mouth around his skin and sucking and biting it. He was sometimes unclothed, and MB would give him hickeys all over his body.[158]
[156] ts 666.
[157] ts 666.
[158] ts 666.
The plaintiff also recalled being made to sit on one knee of his father's lap while naked while his sister sat on the other knee. He said MB would tell the children how much he loved them. While saying this he would give the plaintiff hickeys and play with his penis. He would also touch his naked sister's vagina with his fingers. He said he was doing this because he loved us.[159]
[159] ts 667.
The plaintiff called his Year 6 school teacher, Mrs Landman, who taught him in Collie at this time, as a witness at the trial.
She recalled him as introverted, timid and sweet and said that he did not cause any trouble.
In 1991, she had a specific memory of him coming to school one day with a thick, football club scarf on a hot day and he refused to take it off. Once he did take it off, she saw that his neck was covered in bruises. It did not appear to her to be accidental, and it seemed inflicted by someone. She spoke to the school principal as she regarded bruises as a potential sign of abuse.[160]
[160] ts 1064 - ts 1065.
The plaintiff testified that he felt powerless to resist his father. He said that 'there was no getting away from him' and he was too scared to try. He believed that if he had, his father would have chased him down and flogged him.[161] As he was no longer a ward of the State. He had no‑one to turn to for help.
[161] ts 668.
He recalled times where he would wake up to find MB in bed with him. He said his father would often come to his bed late at night when he was drunk, and he would touch the plaintiff all over the penis area and cuddle him. During this time, he would ask questions that demanded an answer of either 'wrong or right' and he would then be struck regardless of the answer that he gave.[162]
[162] ts 669 - ts 670.
He recalled the physical abuse as occurring daily and thought the sexual abuse had occurred 'maybe three or four times'.[163]
[163] ts 670.
He recalled being bought alcohol and packets of cigarettes from when he was aged around 9.[164] He said his father would occasionally supervise the plaintiff and his sister, but this would very much depend upon his state of intoxication.[165]
[164] ts 649 - ts 650.
[165] ts 649.
RJ
The next involvement that the Department had with the children was when CB advised a police officer and the Department that she had again been sexually abused. This time it was by a man called RJ.[166] It took place while the children were living with MB.
[166] Exhibits 21 - 22, Exhibit 243.
KW witnessing abuse
On 31 October 1991, less than a year after the children had been placed into the full-time care of their father by the DG, MB was caught by the daughter of his first marriage, KW (who was aged around 15/16), engaging in penetrative sexual activity with CB. KW was the second child of MB and his former wife EW. Following her marriage to MB, EW had married JW.
The plaintiff was down at the river at the time the assault occurred, but he quickly became aware that his cousin, KW, had seen CB lying on top of MB.[167]
[167] ts 672.
The plaintiff recalled that following the discovery of his father's assault of CB, KW's friends 'bashed up MB' and that KW took CB to the hospital. He said that he was left with his father while this happened. He recalled the police arrived and he and MB were taken to the police station and locked in the same cell together. He felt very uncomfortable.[168]
[168] ts 673 - ts 674.
There is ample evidence supporting the conclusion that the plaintiff's capacity to maintain full-time employment was hampered by his psychiatric issues that included his lack of confidence, his poor self‑esteem and an inability to deal with stress.
For short intervals, the plaintiff has had caring responsibilities and received a carer's pension.
From June 2021 for about three years the plaintiff worked full‑time at a dairy farm. Dr Sewell observed that the plaintiff found it easier to function in that position as he worked in isolation and around animals, which he found soothing.[359] This job was the longest period of employment the plaintiff had experienced. The employment ultimately ceased due to the plaintiff's emotional dysregulation leading to an altercation with the male manager.[360]
[359] Exhibit 108.2, page 8.
[360] ts 848; see also evidence of Dr Sewell, Exhibit 116.2, page 3.
In Dr Sewell's opinion, the plaintiff's capacity for work has been significantly impacted by the psychological symptoms caused by the sexual abuse. She considered that the abuse throughout his primary school years negatively impacted his academic performance. She also concluded that the trauma impacted the plaintiff's regulation of his emotions and behaviour which became increasingly problematic as he entered high school, around which time he was also engaging in increasing substance use to cope.
It is Dr Sewell's opinion that these factors contributed to the plaintiff's early exit from school and his limited educational attainment, which subsequently restricted his work and educational opportunities upon leaving school.[361]
[361] Exhibit 108.2, page 23.
At numerous intervals throughout his working life, the plaintiff has been unable to work due to his symptoms of abuse and has required Centrelink benefits.[362]
[362] Exhibit 82.
In Dr Sewell's opinion, the plaintiff has significant deficits in interpersonal interactions, which she believes stem from his early experiences of sexual trauma. She states that when the plaintiff perceives threat, he responds in an extremely aggressive and threatening manner, which has led to his exit from multiple workplaces. In Dr Sewell's opinion, his long history of heavy substance use would be prohibitive in him managing to source and maintain work.[363]
[363] Exhibit 116.2, pages 7 - 8.
The response by the defendant, in closing submissions in relation to many of these issues is that the defendant essentially asks the court to draw alternative inferences about the reasons for some of the plaintiff's educational and occupational difficulties. Given my acceptance of the reliability and expertise of Dr Sewell, I am not prepared to draw inferences contrary to her evidence in circumstances where there is no proper evidential foundation to do so.
I accept Dr Sewell's conclusions in this regard entirely.
In short, it is Dr Sewell's opinion that the plaintiff suffered a past loss of employment opportunity due to the sexual abuse in childhood and the subsequent consequential development of psychological disorders. She concluded that the plaintiff was profoundly affected by the sexual abuse in childhood, and this affected his cognitive development, emotional regulation and behavioural control. Dr Sewell observed that, upon leaving school, the plaintiff had a very limited education, significant impairments in managing his emotions and behaviour, and was reliant on substances, all of which limited his employment opportunities. Dr Sewell believes that his severe impairments in interpersonal interactions have ultimately ended in his dismissal on multiple occasions.[364]
[364] Exhibit 108.2, pages 23 - 24.
I allow the plaintiff's claim for past loss of earning capacity on the following basis:
(a)completion of schooling (to the end of Year 12, in 1997); and
(b)earnings at a rate equivalent to the average weekly earnings of full-time employed males in Western Australia.
I accept the plaintiff's submission that the utilisation of average weekly earnings is appropriate in this case. It recognises the difficulties associated with assessing the likely occupational career of a person who is subjected to damage as a child. Dr Sewell stated that, despite the plaintiff's limited formal education, he presented as an intelligent gentleman who, in different circumstances, most likely would have achieved greater academic and occupational success.[365] Dr Sewell's description is entirely consistent with the plaintiff's presentation at trial.[366]
[365] Exhibit 116.2, page 8.
[366] Such an approach was adopted by Herron DCJ in Lawrence [795] and by Palmer DCJ in PLA (a pseudonym) v DEF (a pseudonym) [2024] WADC 53 [145] - [146]. Palmer DCJ cited Lawrence[795] as well as Edelman J, McGregor on Damages (21st ed, 2021) [40-090] (see f/n 137 of PLA v DEF).
The likelihood of the plaintiff being an average income earner but for his psychiatric problems is supported by:
(a)his promotion to leading hand in cleaning the abattoir for V & V Walsh due to his pretty good work ethic;[367]
(b)his capacity to maintain employment for almost three years at the dairy farm;
(c)the evidence that his adverse employment and educational outcomes have been directly caused by the severe psychological outcome of the abuse;
(d)his presentation, that was apparent including his demeanour and obvious intelligence during the course of his testimony.
[367] ts 833.
Mr Thompson set out the plaintiff's actual earnings and compared that to the average weekly earnings.[368]
[368] Exhibit 119.2.
The defendant raised various objections regarding Mr Thompson's evidence although there was no challenge to his expertise as such.[369]
[369]Lawrence [627]; TJ (a pseudonym) v The Bishop of the Roman Catholic Diocese of Wagga Wagga [2023] VSC 704; Parkin v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) [2020] WASC 306; Footscray Football Club Ltd v Kneale [2024] VSCA 314.
In my view, there is no reason at law nor in fact why I ought not accept his evidence in this case.
Defendant's challenge
The defendant contends that the calculations of past economic loss carried out by Mr Thompson fail to take account of the true extent of the plaintiff's past residual earning capacity.
This is based in summary upon a number of factual assertions.
Firstly, it is said that the plaintiff failed to establish that he was fully exploiting his residual earning capacity throughout the relevant period. The defendant contends that the plaintiff's evidence regarding his more recent positive work history enables inferences to be drawn that the assumed and actual earnings on which the plaintiff's calculations are based calculations are unlikely to represent the full exploitation of the plaintiff's earning capacity.
This submission involves various assertions of fact that do not all logically or inferentially derive from the evidence. Further these assertions contradict the opinion of Dr Sewell.
In addition, the defendants adduced no evidence to contradict that of the plaintiff nor Mr Thompson in relation to this issue. The defendant's assertion for example, that 'undeclared income is a possible explanation for some apparent periods of unemployment during [the plaintiff's] youth' is not a conclusion for which there is a sufficient evidential basis.
Mr Thompson gave evidence that was consistent with the plaintiff's account which I accept, and utilised relevant financial materials to reach his conclusions. The methodology adopted by him was not contradicted by other evidence and his approach has been readily accepted by courts across Australia.
The defendant noted that the plaintiff did not provide the court with any psychometric testing nor neuropsychological testing to establish his inherent, unimpaired academic ability. Yet in making this submission there was no authority referenced, nor other reason given as to why such testing is a pre-requisite for the court making relevant findings in its absence.
The defendant essentially seeks to persuade the court, in the absence of any direct supporting evidence, that it should infer matters such as: that the plaintiff could have worked more if he had tried, that the plaintiff failed to properly declare income, the plaintiff's reading difficulties can be explained by 'the misspelling of the given names of his sister and 'Aurthur' which suggests that at least one of [the plaintiff's] parents suffered from a reading difficulty'.
I reject these submissions as they lack an evidential foundation and are contrary to the evidence I do accept.
In relation to the defendant's challenge to Mr Thompson's methodology I note that the alternative model the defendant advocates in submissions does not emerge from any evidence. Given the absence of contrary evidence, my acceptance of Mr Thompson's expertise and evidence and the proven factual basis for his conclusions I do not accept the defendant's objections in this regard.
It is noted further that the defendant's submissions in this regard are significantly based on vague rhetoric and theory rather than evidence. By way of example, the defendant contended:
When a calculation of earning capacity is beset with imponderables and a lack of the usual documents used to make such calculations including tax returns, notices of assessment and payslips, the court may make a global assessment of loss rather than attempt to arrive at a precise calculation. In this case a global assessment might reflect intermittent periods of unemployment caused by angry outbursts, reduced to take account of [the plaintiff's] improved ability to maintain employment in recent years.
Based on the evidence I accept and the factual basis for the evidence having been proven I find the plaintiff's claim in this regard appropriate.
Past loss of earning capacity
The plaintiff's claim for past loss of earning capacity is taken from the available earnings data in:
1.(a) ATO documents;[370]
[370] Exhibit 83.
(b)Centrelink records;[371] and
(c)specific employment records;[372] and
2.Further it is derived from Mr Thompson's report;[373] specifically:
(a)Schedule D[374] which sets out the available net actual earnings and likely earnings;[375] and
(b)Schedule F[376]which sets out notional earnings, actual earnings and the differences between the two; and
3.Mr Thompson's supplementary report.[377]
[371] Exhibit 82.
[372] Exhibit 77, Exhibit 78, Exhibit 79 and Exhibit 80.
[373] Exhibit 119.2.
[374] Exhibit 119.2, page 30
[375] Where not available - Mr Thompson explains his methodology in this respect on page 21.
[376] Exhibit 119.2, page 32.
[377] Exhibit 121.2; specifically, Schedule A, which updates sch D of the first report to the end of 2024.
I allow the plaintiff's claim for $900,849.
Past loss of superannuation
The same evidence and logic are applied for past loss of superannuation.[378]
[378] The figures are set out in Exhibit 121.2, sch B.
I allow the plaintiff's claim for $97,045.00.
Interest
I allow the plaintiff's claim for interest of $626,509.[379]
Future loss of earning capacity
[379] The calculations are set out in Exhibit 121.2, sch E.
The defendant says that it is likely that the plaintiff's current income from his employment reflects his unimpaired earning capacity. Thus he is not suffering any loss on account of diminished earning capacity due to any of the alleged negligence. As the plaintiff has observed, the defendant submits both that the plaintiff was not working to capacity in the past and is working to capacity now, and all of this is said without an adequate evidential foundation.
The defendant does not point to any particular evidence in support of this submission other than to suggest that at the time of trial, the plaintiff was employed and there were no impediments on his ability to work in his position.
In Dr Sewell's opinion, the plaintiff has very limited capacity for work as a result of the severe psychological symptoms related to childhood sexual abuse. She considers that the plaintiff's career trajectory has been adversely affected by psychological symptoms caused by sexual abuse. It is her opinion that the plaintiff is extremely limited in his occupational capacity as a consequence of severe psychological symptoms of PTSD, borderline personality disorder, and substance use disorders.[380]
[380] Exhibit 108.2, page 24.
Dr Sewell considers that the plaintiff has a very guarded prognosis due to his severe psychological disorder which impacts his daily functioning. She has observed minimal change in his presentation in the period between her interviews of the plaintiff. She observes that the plaintiff has limited resilience and will remain vulnerable to stress, the development of mood and anxiety disorders, lapses in substance use and physical morbidity.[381]
[381] Exhibit 116.2, page 9.
It is Dr Sewell's opinion that the plaintiff's capacity to continue to work into the future is very uncertain due to his severe CPTSD. Dr Sewell noted that he relies upon illicit substances and that his early experience of severe abuse and neglect has impacted his capacity to get along with people. This is of such a nature such that he remains extremely vulnerable in interpersonal interactions and he is at high risk of being fired for his emotional outbursts. Dr Sewell considers that he has limited resilience to stress, and an absence of support network. In taking those considerations into account, in Dr Sewell's opinion, the plaintiff does not have the capacity to maintain fulltime work until the age of retirement.[382]
[382] Exhibit 116.2, pages 8 - 10.
The plaintiff has been assessed by Centrelink and is considered to have a permanent psychiatric disorder of depression and PTSD, with a reduced work capacity due to the functional impact of his permanent condition.
I prefer the evidence of Dr Sewell over the observations of the defendant.
I have turned my mind whether a discount to the claim for the future loss of earning capacity and related superannuation ought be made. Having considered the provisions raised in Kschammer v RW Piper & Sons Pty Ltd,[383] I consider than no discount should to be made for the ordinary vicissitudes of life. This is because in my view the plaintiff has already been deprived of the chance to earn more than the average male earnings in circumstances where the evidence reveals him to be a highly capable man who may well have been considerably more successful in his chosen vocation than the award allows.
[383] Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298.
I allow the plaintiff's claim of $549,626.[384]
Future loss of superannuation
[384] Exhibit 121.2m sch C.
The same evidence and logic are applied as above in relation to the claim for future loss of superannuation.
I allow the plaintiff's claim of $73,557.[385]
Past treatment expenses
[385] The calculations are set out in Exhibit 121.2, sch D.
The plaintiff claims his out of pocket psychological and psychiatric treatment expenses and Medicare benefits paid (which are recoverable by Medicare), per his Services Australia Medicare and Pharmaceutical Benefits Scheme history.[386]
[386] Exhibit 260.
There is no objection to this claim.
I allow the plaintiff's claim for $624.99.
Future treatment expenses
Dr Sewell's evidence about the plaintiff's future treatment requirements was as follows:[387]
(a)referral to a consultant psychiatrist for review of symptoms, risk assessment, ongoing diagnostic clarification and prescription of medication; monthly appointments for a minimum of five years costing in the order of $450 per session;
(b)referral to a clinical psychologist with expertise in complex trauma for trauma‑informed therapy with a focus on distress tolerance, emotional regulation and interpersonal skills; Dr Sewell considers that the severity of the plaintiff's illness indicates increased duration of therapy, causing her to recommend weekly appointments for a minimum of five years costing in the order of $280 per session;
(c)medication to address his psychological symptoms, to assist with emotional regulation and anger control, such as quetiapine, increasing according to tolerance and response, and Prazosin for nightmares; Dr Sewell considers that, as the plaintiff has difficulties tolerating medications, he may require trials of alternative medications, in order to settle on the most appropriate treatment; costing in the order of $100 per month; and
(d)supported socialisation in the community to assist with the plaintiff's significant deficits in interpersonal interactions, comprising occupational therapy fortnightly for a minimum of three months, with a transition to community-based activities, costing in the order of $200 per session.
[387] Exhibit 108.2, pages 21 - 22; Exhibit 116.2, page 9.
Dr Sewell observed that the plaintiff had been reluctant to engage in therapy and that he has a mistrust of people in authority. Dr Sewell opined that the plaintiff had not been offered evidence-based treatment for his conditions.[388] That is consistent with the plaintiff's evidence.[389]
[388] ts 1149.
[389] ts 779, ts 792.
Dr Sewell considered that 'the plaintiff seemed relatively psychologically minded'.[390] The plaintiff gave evidence that he liked Dr Sewell and that he was open to seeing a psychiatrist like her once this case was over.[391]
[390] ts 1149.
[391] ts 697.
Dr Sewell said that a clinical psychologist with expertise in complex trauma is important for the clinical psychologist that the plaintiff sees.
The plaintiff has had some difficulties with psychiatric medication over the years.[392] In Dr Sewell's opinion, there are alternative medications that he ought to pursue.[393] Dr Sewell said that medicinal cannabis could be used in conjunction with other psychiatric medications.[394]
[392] ts 792, ts 1151.
[393] ts 1151.
[394] ts 1151.
Dr Sewell said that there were options for CPTSD patients who had difficulty with prior psychiatric medications and that is something that the plaintiff's treating psychiatrist would help him with.[395]
[395] ts 1152.
Dr Sewell gave evidence about 'supported socialisation in the community', noting that the plaintiff is very socially isolated, and that this is related to poor mental health outcomes. She said that people who have had such a traumatic life as the plaintiff has had are focused on survival, so their capacity to develop recreational pursuits and hobbies and interests is diminished and often, they don't get along with people to go to clubs. She said that an occupational therapist could work with the plaintiff to identify hobbies and recreational pursuits and socialisation that was safe for him. Dr Sewell said that such services are readily available, nearby to where he lives. Dr Sewell described this service as 'more practical or behaviourally based than seeing a psychologist'.[396]
[396] ts 1152.
The defendant raised that the plaintiff has been somewhat resistant to psychotherapy and/or pharmacotherapy for the treatment of his psychiatric conditions. Dr Lee was dubious about whether the plaintiff would be able to adequately engage in psychotherapy while using cannabis on a daily basis. She was doubtful as to the benefit of attempting to have him cease his cannabis use.
Dr Lee was also unsure about the degree to which pharmacotherapy, even provided with the supervision of a consultant psychiatrist, would ameliorate the plaintiff's symptoms.
The defendant submits that although the plaintiff expressed at trial a willingness to attempt psychotherapy and pharmacotherapy, his long‑term resistance to doing so, combined with the above factors, make it unlikely that sustained pharmacotherapy and psychotherapy would in fact eventuate.
Having heard the evidence of the plaintiff and in particular relying on the evidence of Dr Sewell who was an impressive witness who had clearly formed a trusting relationship with the plaintiff, I prefer her evidence over the evidence of Dr Lee in this regard.
Further, I accept that the plaintiff's traumatic past and negative experiences with mental health practitioners have made him wary of treatment in this regard. I do however accept his evidence that his views are changing and that his positive experience with Dr Sewell has made him far more open in this regard.
Accordingly, I allow the following:
(a)at $450 per monthly session with a consultant psychiatrist over for a minimum of five years = $103.56 per week x 226.3 (five‑year 6% multiplier) = $23,435.83;
(b)at $280 per weekly session with a clinical psychologist over for a minimum of five years = $280 x 226.3 (five-year 6% multiplier) = $63,364;
(c)at approximately $100 per month for tailored pharmacology for over 10 years = $23.01 $25.00 per week x 395.5 (10-year 6% multiplier) = $9,100.46;
(d)at $200 per fortnightly sessions of supported socialisation provided by an occupational therapist for a period of three months = $100 per week x 12.675 (say one year 6% multiplier / 4) = $1,267.50; and
(e)a global $5,000 for required general practitioner input and required referral to consultant psychiatry and clinical psychology, also for oversight of the plaintiff's pharmacology regime subsequent to his five years of psychiatric input and psychological therapy.
The total allowed is $102,167.79.
Travelling expenses
In line with the particulars of damages, I allow the plaintiff's claim for a global amount of $5,000 for past and future travelling expenses relating to the need to pursue treatment appointments and medication.
Exemplary damages and aggravated damages
The plaintiff claims exemplary damages and aggravated damages in respect of the defendants' decision‑making that exposed the plaintiff as a child to traumatisation and re-traumatisation.[397]
[397] Statement of claim, par 35.
There are a number of authorities that set out the relevant principles to be applied in the awarding of these heads of damages.[398]
[398] Cunningham v Traynor [2016] WADC 168; ZYX v Cable [No 5] [2023] WADC 61; Carter v Walker [2010] VSCA 340; (2010) 32 VR 1 (Carter).
Exemplary damages are given over and above compensatory damages to punish a defendant and provide retribution, to act as a deterrent to the defendant and others minded to behave in a similar way and to demonstrate the court's disapproval of such conduct.[399]
[399] The State of Western Australia v Cunningham [No 3] [2018] WASCA 207 [109] (Cunningham).
Aggravated damages in contrast are compensatory in nature being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like.
Exemplary and aggravated damages are rarely awarded. However, the one context in which such damages has occurred is in cases involving historical sexual abuse.[400]
[400] See Lawrence, Erlichv Leifer [2015] VSC 499; Cable.
In Cable, $100,000 in exemplary damages was awarded against the defendant who had not been charged with criminal offences nor dealt with the criminal justice system in circumstances where his conduct involved an abuse of trust.
I accept that 'malice' is not a necessary element of an award of exemplary damages.[401] Exemplary damages may be awarded where a defendant's conduct is outrageous, high-handed and contumelious, though not malicious in the sense of motivated by spite, ill-will or hatred.[402] They may be awarded in respect of any tort that is committed in circumstances involving a deliberate, intentional or reckless disregard of the plaintiff's rights.[403]
[401] Cunningham [110].
[402] Johnstone v Stewart [1968] SASR 142, 145 (Johnstone); Cunningham [110].
[403] Carter [284].
The defendant relies on the evolution of knowledge about child sexual abuse and the rollout of training of staff as factoring against an award for exemplary damages.
In my view, while this submission is to some extent correct, the actions of the defendant in returning the plaintiff to his abuser in April 1989 and the failure to heed the clear and obvious red flags applicable to MB cannot be explained by time nor a deepening understanding about child sexual abuse. Even in the late 1980s and the early 1990s the DG and the Department were, or at least should have been, well aware of the risks to the plaintiff by the decisions that were made in relation to these two placements.
The plaintiff submits that given the 'multiple and persistent breaches of duty in the context of the nature of the duty of care owed to the plaintiff as a ward of the State', the court should award $250,000 in exemplary damages.
In Gray v Motor Accident Commission,[404] Gleeson CJ and McHugh, Gummow and Hayne JJ observed that:
12Exemplary damages are awarded rarely.
...
14… Nevertheless, the phrase adopted by Knox CJ in Whitfeld v De Lauret & Co Ltd of 'conscious wrongdoing in contumelious disregard of another's rights' describes at least the greater part of the relevant field.
[404] Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 [12] - [16] (Gray).
In Lawrence Herron DCJ did not award exemplary damages. A brief summary of Herron DCJ's factual findings on the issue is as follows:
1.There is a distinction between the conduct of the abusers and the conduct of the defendant institution.[405]
2.The Christian Brothers admitted having received reports relating to allegations of sexual abuse committed against children in their orphanages by their members,[406] but those in control were not aware of the nature and extent of the sexual abuse being perpetrated on the children.[407]
3.The Christian Brothers admitted that they understood that sexual abuse of children could have an ongoing impact on the children.[408]
[405] Lawrence [1047].
[406] Lawrence [1011].
[407] Lawrence [1005], [1012].
[408] Lawrence [1011].
It is the case that the perpetrators of the sexual abuse of the plaintiff have not been dealt with in any criminal proceedings.
In my view, there should be an award of exemplary damages but this should be limited to being based on the conduct of the defendant in returning the plaintiff to GN in April 1989 and the decision to allow the wardship to end and to permanently place the plaintiff with his father MB. This conduct was by any measure a contumelious disregard for the plaintiff's rights by the DG and thereby the State. These two decisions led to a chain of events that resulted in the further significant sexual abuse and consequential harm to the very young and vulnerable plaintiff.
Accordingly, because of the particular circumstances of this case, including the extent of the abuse, the degree of negligence and impact of the abuse, I allow an award of $150,000.
The plaintiff also claims aggravated damages because of the conduct of the defendants in the way in which they defended this litigation.[409]
[409] Statement of claim, par 36.
There was nothing in my view regarding the defendants conduct or approach to the case that would provide a basis for such an award.
Aggravated damages are compensatory in nature.[410] They may be awarded when the harm caused by a particular act is aggravated by the manner in which the act was done.[411] Unlike exemplary damages, aggravated damages are not punitive. Rather, they are awarded to ensure the adequacy of compensation by taking into account aggravating factors.[412]
[410] Cunningham [113].
[411] Gray [6].
[412] Gray [6].
I accept the defendant's contention that none of the defences pleaded are improper such that they could provide a basis for an award of aggravated damages. Nor is there any other basis to justify such an award.
Criminal injuries compensation
On 12 August 2023, the plaintiff was awarded the following by the Chief Assessor of Criminal Injuries Compensation:[413]
(a)$40,000 in relation to alleged sexual abuse and physical abuse offences perpetrated against him by GN between 1 September 1983 and 31 May 1989;[414]
(b)$48,856.17 in relation to physical abuse against him by MB between 1 January 1980 and 1 November 1991;[415] and
(c)$14,000.00 in relation to a proven sexual abuse offence perpetrated against him by SN on 14 September 1990.[416]
[413] Pursuant to the Criminal Injuries Compensation Act 2003 (WA).
[414] Exhibit 89.
[415] Exhibit 90.
[416] Exhibit 91.
The plaintiff was therefore awarded a total $102,856.17 in Criminal Injuries Compensation in relation to instances of child abuse.
By operation of s 15K of the CLA, I accept the following deductions apply to an award of damages in these proceedings:
(a)50% of the award in relation to GN being $20,000;
(b)50% of the award in relation to MB offences, being $24,418.09; and
(c)100% of the award in relation to the SN offence, being $14,000.
The assessed deduction therefore totals $58,418.09.
The reason for deducting 50% of the awards in relation to GN and MB is because the plaintiff made applications for alleged physical and sexual abuse offences that occurred both prior to and after 24 June 1988, and there was no delineation by the Chief Assessor of Criminal Injuries Compensation in making awards as to pre and post‑24 June 1988 offences and s 15K(4) applies.
I have detailed below the total of claim:
Head of damage
Claim $
General damages
400,000
Past loss of earning capacity
900,849
Interest on past losses
626,509
Future loss of earning capacity
549,626
Future loss of superannuation
73,557
Past medical expenses
624.99
Future medical expenses
102,167.79
Travel
5,000
Exemplary damages
150,000
SUB-TOTAL
2,905,378.78
Section 15K deduction
- 58,418.09
TOTAL
2,846,960.69
I will hear the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KH
Associate to Judge Black
9 SEPTEMBER 2025
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