GGG v YYY

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 2814 of 2010

GGG	Plaintiff
v
YYY	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	1-5 August 2011
DATE OF JUDGMENT:	1 September 2011
CASE MAY BE CITED AS:	GGG v YYY
MEDIUM NEUTRAL CITATION:	[2011] VSC 429

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PERSONAL INJURY – Sexual abuse of boy aged 11-13 by uncle – Delay of 33 years in instituting proceedings – Tendency evidence – Circumstances of sequential abuse – Defendant declining to be cross-examined on grounds of the privilege against self-incrimination – Ongoing psychological consequences of abuse – Loss of enjoyment of life – Effect of abuse upon plaintiff’s capacity to bring proceeding – Extension of limitation period – General damages for pain and suffering – Aggravated damages – Exemplary damages – Special damages – ss 27K and 27L Limitation of Actions Act 1958 – s 97 Evidence Act 2008 – Briginshaw (1938) 60 CLR 336 – Carter & Anor v Walker & Anor [2010] VSCA 740.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Ms B Knoester	Holding Redlich
For the Defendant	Mr J Ruskin QC with Ms A Magee	Rigby Cooke

TABLE OF CONTENTS

The plaintiff........................................................................................................................................ 3

The defendant..................................................................................................................................... 9

The incidents..................................................................................................................................... 10

Tendency evidence.......................................................................................................................... 22

Did the abuse occur?........................................................................................................................ 27

Medical evidence.............................................................................................................................. 32

Dr Tom Kerrihard....................................................................................................................... 32
Dr Christopher Mulroney.......................................................................................................... 38
D R W Farnbach........................................................................................................................... 39
Dr Michele Roberts..................................................................................................................... 41
Dr David Weissman.................................................................................................................... 42
Dr Michael Saling........................................................................................................................ 43
Conclusions concerning medical evidence............................................................................. 44

Loss of enjoyment of life................................................................................................................ 45

Extension of the limitation period................................................................................................ 46

Critical Dates................................................................................................................................ 46
When did the cause of action become statute-barred?.......................................................... 46
The application to extend the limitation period.................................................................... 49

Legal principles......................................................................................................................... 51

Synthesis....................................................................................................................................... 55

(a)  the length of and reasons for the delay on the part of the plaintiff....................................... 55
(b)  the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant       56
(c)  the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant.................................................................................................................................................. 58
(d)  the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability.................................................................................................................................................. 59
(e)  the time within which the cause of action was discoverable................................................ 59
(f)  the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages......................................................................................... 61
(g)  the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received........................................................................................... 61
Section 27L(2) (a) whether the passage of time has prejudiced a fair trial of the claim; (b) the nature and extent of the plaintiff's loss; (c) the nature of the defendant's conduct................................................ 61

Quantum............................................................................................................................................ 63

Conclusion......................................................................................................................................... 66

HIS HONOUR:

This proceeding was issued in May 2010. The plaintiff is a 45 year old man who claims damages, including aggravated and exemplary damages, in respect of sexual abuse allegedly inflicted upon him by the defendant between Easter 1977 and December 1979. The defendant is one of the plaintiff’s uncles and is now an 81 year old man.

The Court must resolve a series of evidentiary and procedural issues in conjunction with determining the claim. In summary, the fundamental issues are as follows:

(a) Should the plaintiff be permitted to rely on tendency evidence adduced from one of his brothers and a friend of another brother?

(b) Should the plaintiff’s account of the sexual abuse be accepted to any and what extent?

(c) Should the limitation period which would otherwise apply to the proceeding be extended pursuant to s 27K of the Limitation of Actions Act 1958?

(d) What compensation should the plaintiff receive?

The plaintiff gave evidence in support of his claim and called evidence from his brother RA; a police officer AH who, as a boy, was a friend of the plaintiff’s family; the plaintiff’s sister KA; and a psychiatrist, Dr RA Kerrihard. Medical reports were also tendered from Dr Weissman of 24 March 2010 and 22 March 2011; Dr Roberts of 6 September 2010 and 10 March 2011; Dr Farnbach of 29 June 2011; and Dr Mulroney of 6 October 2010 and 16 March 2011.

The defendant also gave evidence in chief in defence of the claim, but after some initial cross-examination declined to answer further questions on the grounds of the privilege against self-incrimination. The plaintiff did not oppose this course. I upheld the defendant’s right to object to giving evidence pursuant to s 128 of the Evidence Act 2008. The defendant tendered the medical reports of Dr Saling of 20 March 2011 and 29 July 2011.

For the reasons I will elaborate below, I have concluded:

(a) the plaintiff should be permitted to rely on the tendency evidence adduced from his brother RA;

(b) the plaintiff’s account of the sexual abuse suffered by him should be accepted with respect to its core elements;

(c) the relevant limitation period should be extended; and

(d) the plaintiff should receive general damages which I assess at a total of $250,000, together with special damages in respect of past and future medical expenses which I assess at $17,000.

I will deal in turn with the following matters:

(a) The plaintiff.

(b) The defendant.

(c) The incidents alleged.

(d) The tendency evidence.

(e) Did the abuse occur?

(f) The medical evidence.

(g) Loss of enjoyment of life.

(h) The limitations question.

(i) Quantum.

The plaintiff

The plaintiff was born on 3 April 1966 in Melbourne. At the time of the trial of this proceeding, he was 45 years old.

The plaintiff was the youngest of five children (four boys and a girl), of whom four siblings survive, and was raised in the eastern suburbs of Melbourne. His parents separated when he was 17 and divorced when he was 21. He has a step-brother and half sister from his father’s second marriage. He is now closer to his mother than his father.

The plaintiff was educated as a day student at a private school in Melbourne and then moved to boarding school outside Melbourne for years 8 to 12. Whilst a student and in his family life, he was involved in a wide variety of sporting activities. This interest has continued into later life. The plaintiff gave evidence that his almost compulsive interest in sport stemmed from a desire to keep himself ‘absolutely and utterly occupied… so [he] didn’t have to think about anything.’ His records whilst a student were, in his words ‘shocking’ due, he says, to an inability to concentrate. He has since been diagnosed with Attention Deficit Disorder, but makes no connection between this and abuse by his uncle.

The defendant was a frequent visitor to the plaintiff’s family home (as was the plaintiff to the defendant’s as the defendant lived with the plaintiff’s grandmother). He also took the plaintiff on Friday night visits to car yards to view new model motor vehicles.

The defendant accompanied the plaintiff, the plaintiff’s family, four to five other families and friends of the children of those families on Easter holidays between 1970 and 1980. At the Easters of 1977 to 1980, the families holidayed in Corowa at a campsite by the river. A feature of these holidays was use of the defendant’s motorboat for water skiing. It is here, in 1977, that the plaintiff alleges the abuse by the defendant commenced.

The defendant was present at another group family holiday to Kangaroo Island in January 1978. The defendant also used to take the plaintiff and his siblings, without their parents or other adults, to Melton Reservoir to water-ski on the weekends in the summers, and was present at family Christmas holidays at Point Lonsdale where the plaintiff’s grandparents and aunt and another uncle had properties. The plaintiff further alleges that abuse also took place at these, as well as other locations including in Ballarat, the plaintiff’s family home, the defendant’s home, and in moving cars.

The plaintiff gave evidence that after each incident of abuse at Corowa, the defendant told him: ‘Do not tell anybody or I will hurt you.’ The plaintiff took this threat literally in light of what he perceived to be the vile temper of the defendant. The plaintiff says that he did not feel capable of saying no to the defendant when he came to ‘retrieve’ him before what became the subsequent incidents of abuse at Corowa, or capable of telling anyone at that time or after any subsequent abuse because he was shocked, unable to control himself (in terms of his arousal), ashamed, disgusted and ‘had no knowledge of anybody else that this had happened to.’ In relation to further incidents of abuse, the plaintiff noted ‘I was forever being threatened’ and questioned who would believe him. He noted ‘I’d been told, “If you tell anybody you’ll be hurt” it’s – you know, at that young age, you do as you’re told.’ He later said in his evidence: ‘I didn't tell anybody because I'd - I was ashamed of it, I came from a very sporting family, I came from a "Perfect" family.’

The plaintiff says that there was no further abuse after he commenced at boarding school in 1980 despite his continued participation in family functions and holidays which included the defendant. The plaintiff did however detail one incident where the defendant attempted to initiate further sexual contact but was rebuffed by the plaintiff when the plaintiff told him to ‘go fuck himself’. Indeed, the plaintiff gave evidence that the abuse stopped around this time ‘Because I probably worked out how to get away from him - no, not probably, I had worked out how to get away from him. I mean if he came near me I'd belt him.’

The plaintiff gave evidence that he felt effects of the abuse at the time in terms of a perfectionist complex (he felt everything he did had to be perfect so he could prove to himself that he ‘could get away from this’, ie. the abuse), obsessive compulsive behaviour, and as difficulties with trust (both of himself and of others). The plaintiff maintains that he did not suffer from these problems before the abuse. He also maintains that he did not understand where his desire for perfection came from until he was under psychiatric/psychological care.[1]
[1]To this end, he stresses the assistance of Dr Michele Roberts, his Australian psychiatrist.

After leaving school, the plaintiff obtained qualifications in business studies and business administration in Melbourne and gained employment as an auditor. He later commenced graduate studies in banking and finance in Melbourne, but never completed these as he moved to Sydney at age 25 to complete graduate study in applied finance and work as an analyst and foreign currency trader.

The plaintiff suffered from viral meningitis in 1995 and saw a psychiatrist, Dr Robert Haik, at that time as he had become depressed as a consequence of the infection. The plaintiff gave evidence that he told the psychiatrist about the sexual abuse he had suffered as a child but then shut it away. It was the first time the plaintiff had ever spoken of the abuse. The plaintiff maintains that he had ‘no idea’ of the effects of the abuse at this time.

Shortly after this, at the age of 29 he moved to the United States where he remained for the following 14 or 15 years. The plaintiff gave evidence that he felt that everything he did he ‘had to be perfect at it so [he] could somehow prove to [himself] that [he] could get away from this [being his history of abuse] and [his postgraduate study] was [his] ticket to America to get out of here.’

Whilst in the United States, the plaintiff was employed in a number of senior positions, the longest of which was a project director role he worked in for nine years, averaging 14 hours per day. The plaintiff gave evidence that when he was 37 or 38 he started having recurrent nightmares about being molested by the defendant. He said that had not suffered from such nightmares prior to this time. As a result, the plaintiff worked increasingly hard and became anxious, angry and short tempered, though never with his staff. He also used drugs recreationally.

The plaintiff did not at the time consider this change in emotional state to be connected to the abuse, however in the course of psychiatric/psychological treatment,[2] has come to see a connection.
[2]The plaintiff places particular emphasis on the assistance of Dr Michele Roberts, his Australian psychologist.

In around 2006, he received treatment for a carcinoid tumour and his oncologist referred him to a psychiatrist, Dr Tom Kerrihard, for treatment for suspected Bipolar Disorder. The plaintiff was under Dr Kerrihard’s treatment for approximately three years in the US during which time, amongst other things, he disclosed and received treatment for the effects of childhood sexual abuse. The plaintiff gave evidence that he did not feel capable of publicly (or to his family) disclosing the abuse or bringing any action against the defendant when, under Dr Kerrihard’s treatment, he first became aware of the extent of the effects of the sexual abuse.

The plaintiff did disclose the abuse to an ex-partner in around 2002-2003 then ‘buried it’, and to another ex-partner at some point before 2009, however did not tell anyone else until he told Dr Kerrihard in 2006 and his father in 2009.

The plaintiff has had a number of health problems including a carcinoid tumour and prostate problems. In addition, he has suffered from problems with his jaw since having had cosmetic plastic surgery at the age of 23. The plaintiff maintains that he now understands that he elected to have such surgery as part of a perfectionist complex stemming from his sexual abuse and having been raised in a ‘perfect’ family.

The plaintiff identifies as homosexual and has had relationships in the past, though none have lasted for longer than 2½ years, due to what the plaintiff describes as a difficulty in trusting people. The plaintiff stated that he had always known he was homosexual and does not believe the alleged abuse played any role in determining his sexuality.

The plaintiff has not worked since 15 May 2009 when he lost his job as a project director with the State of California due to the economic downturn. He returned to Australia on 17 December 2009 to look for work, having phoned his father, on the advice of Dr Kerrihard,[3] in October or November of that year to tell his father about the alleged abuse.[4] During that same phone call the plaintiff asked his father to confront the defendant and told his father that he did not want to see the defendant during his visit, or ever again and that the defendant was not to come to the family home at Point Lonsdale that Christmas whilst the plaintiff was there. The plaintiff phoned his father about a week later to check whether this information had been conveyed but has no recollection of this being confirmed.
[3]Dr Kerrihard has no recollection of encouraging the plaintiff to disclose the abuse.
[4]The plaintiff maintains that it took him six months to tell his father about the abuse because he ‘still couldn't get around the fact that this had happened’ and he is still getting around the fact that ‘every time I walked in his office there would be a screaming match.’

The plaintiff went to the family home at Point Lonsdale just prior to Christmas 2009. Whilst visiting his aunt next door, he crossed paths with the defendant, leading to an argument with his father. After this incident the plaintiff fled his aunt’s kitchen and washed two of the defendant’s cars. When questioned as to why he would wash cars belonging to a man with whom he was so angry, he stated ‘[b]ecause I needed to get out of the house and I needed to do something’ and went on to explain how in part he copes by keeping himself compulsively busy.

Shortly thereafter, the defendant informed the plaintiff’s aunt that he would not be attending the family Boxing Day lunch.

Around this time, the plaintiff became distressed upon learning that the defendant had been keeping a car at his sister’s property and interacting with the plaintiff’s nephew. His distress stemmed from the fact that the defendant had purchased cars for him and his brothers and several of the alleged incidents of abuse had taken place in the context of car trips and/or visiting motor yards.

A few days later, the plaintiff became aware that the defendant was at his aunt’s house next door at Point Lonsdale. When questioned by his mother about his anxious demeanour, the plaintiff said that he refused to go next door. This prompted a confrontation between the plaintiff and his mother which led to the plaintiff disclosing his abuse to his mother for the first time. The plaintiff’s mother immediately phoned the plaintiff’s sister, as the plaintiff had also expressed to her his concern about potential contact between the defendant and his nephew. A family meeting comprising the plaintiff, his mother, his father, his two surviving brothers (one by telephone) and his sister and her husband was held a few days later, at which his father said he would contact a partner at a well known law firm who was known to the family to discuss how to handle the matter. As a result of that contact the plaintiff was provided with the phone numbers of three solicitors, and with the assistance of one, initiated this proceeding.

The plaintiff maintains that he had neither a willingness nor the capacity to consider taking legal action before this point when it was decided upon by his family. He had not felt able to take this step as he was still ashamed. In the plaintiff’s mind, finding out about the presence of the defendant’s vintage car at his sister’s property, at a time when his nephew was at a vulnerable age, was ‘a clincher’ as he could not face the possibility of his nephew also being abused by the defendant.

In the plaintiff’s words, he has been ‘struggling with it’ ever since the onset of the nightmares, and ‘it will not go away.’ The plaintiff has returned to the US some nine times since disclosing the abuse 18 months ago, as, in his words ‘when it gets too much, I have to go’.

The defendant

The defendant was born on 6 October 1930. At the time of the trial of this proceeding, he was 81 years old.

He is the older brother of the plaintiff’s father.

The defendant left school at 19. He was employed as a pharmaceutical salesperson for Bayer Pharmaceuticals from 1964 to 2001.

The defendant resided with the plaintiff’s grandmother at the time of the incidents in question.

The defendant was a frequent visitor to the plaintiff’s home, having what was in effect an open invitation.

The defendant has an interest in cars and would often attend car yards with both the plaintiff and his father, or the plaintiff on his own.

The defendant also accompanied the plaintiff’s family on a variety of holidays during the time of the alleged abuse.

The incidents

It is common ground that at Easter 1977 the plaintiff and the defendant were part of a group of more than 20 comprising both adults and children, which camped at Corowa on the River Murray. The majority of the group was constituted by parents and children from four different families. Friends of the families also attended. The defendant was the owner of a motor boat which was used by the group as a whole for the purpose of water skiing.

The plaintiff’s evidence is that the motor boat was put in and later taken out of the river upstream from the caravan park at a concrete ramp some 10 to 15 minutes drive away. It was then used in the river from the caravan park for the purpose of water skiing.

At about 4:00 or 4:30 pm on Good Friday or Easter Saturday, the plaintiff says he accompanied the defendant in the boat back up to the boat ramp in order to take the boat out of the water and bring it back to the camp ground on a trailer towed behind the defendant’s car. Despite his young age, the plaintiff could drive a car and backed the trailer down the ramp. The boat was winched onto the trailer and the defendant drove back towards the campsite, with the plaintiff sitting next to the defendant on a bench seat. The plaintiff was wearing Speedos. In the course of the drive the defendant showed the plaintiff a magazine containing photographs of men with erect penises taken out from under the driver’s seat of the car.

In the course of the drive the defendant also invited the plaintiff to steer the car. As they travelled along the main road and while the plaintiff held the steering wheel with his hands the defendant first put his hand on the plaintiff’s leg and then on the plaintiff’s penis. He then masturbated the plaintiff. When they arrived back at the camping ground they stayed in the car for a period of time and further sexual touching occurred. The plaintiff masturbated the defendant at the request of the defendant. The defendant was wearing board shorts. The defendant penetrated the plaintiff’s anus with the defendant’s finger.

The plaintiff’s description of these events in evidence was relatively detailed and circumstantial. He described the composition of the group who camped together, his uncle’s boat and motor vehicle,[5] the position in which the family camped, the general disposition of tents (including his uncle’s tent), and a rubber dinghy owned by his parents.
[5]The car was a Ford Falcon owned by the defendant’s employer Bayer, coloured a purple/pink colour with brown vinyl bench seats and an automatic gear shifter on the steering column.

He described his involvement in the water skiing activity, including both driving the boat and skiing.

He described ejaculating twice on the trip back to the campsite, the position in which the defendant’s car was parked on return to the campsite, and the defendant saying ‘Look, how interesting, nobody even knows we're here and we’ve been here for half an hour.’

The plaintiff says that when he got out of the car the defendant said ‘Do not tell anybody or I will hurt you.’ The plaintiff feared he would be hurt because his uncle had a vile temper which he had displayed in a number of social situations.

The following day similar sexual acts occurred first in the motor boat when the plaintiff was forced to take down his Speedos and then in the car. The acts in the motor boat occurred when the plaintiff was ‘under the dashboard’ of the boat and involved mutual masturbation and digital anal penetration of the plaintiff. This occurred over a 10 to 15 minute period during the trip from the campsite up to the boat ramp.

When they reached the ramp the plaintiff got out and backed the trailer into the water. The boat was loaded onto the trailer and they again drove back with the plaintiff steering the car. Mutual masturbation and digital anal penetration of the plaintiff again occurred in the defendant’s car. The masturbation occurred as the plaintiff steered the car with one hand. They were in the car for 10 to 15 minutes.

As the plaintiff recollects it a similar sequence occurred on a third evening, although when his evidence as a whole is considered it may be that the abuse occurred on two evenings only, being the last two evenings before the family returned to Melbourne.

The plaintiff says that on each occasion the defendant told him ‘Do not tell anybody’. On each occasion the defendant came and retrieved the plaintiff from a group to take the boat upstream prior to the abuse. He says he was shocked and ashamed and did not say what had happened or resist repeat trips with the defendant, because he had been told he would be hurt if he stated what had occurred.

The defendant denies adamantly that he sexually abused the plaintiff at Corowa or at all. He says that the plaintiff is lying. It was put on his behalf to the plaintiff that the ramp at which the boat was taken in and out of the water was situated adjacent to the camp ground 50 to 70 metres from the position where the boat was left over night. The plaintiff’s brother RA, sister KA and the family friend AH gave evidence which supports the plaintiff’s evidence that the boat was taken out of the water some distance upstream.[6] Conversely, these witnesses each attest that the ramp adjacent to the camping area was a dirt ramp and not usable for the purpose of taking the boat out of the water with the car and trailer. Different estimates of time were given for the road trip to and from the ramp but I am satisfied that the drive was potentially one in the order of 10 minutes.
[6]RA said ‘the ramp was not at the caravan park because there was no ramp there that was suitable to launch a boat so each morning, the boat had be trailered to the boat ramp which was approximately 10 minutes away and put in the water and then motored up the river or the down the river I should say to the caravan park and that’s where we ski from and then at the end of the day, it had to be motored back and taken out of the water and then the boat was brought back to the caravan park for the night.’ He conceded in cross-examination it is possible his memory is incorrect. AH said the boat ramp utilised was 10 to 15 minutes away and that he was quite clear on this point. KA said that the ramp at the camp ground was unusable.

The defendant produced a sketch showing the position of the ramp adjacent to the camping ground which he says was used to launch and retrieve the boat at Easter 1977. He also said that there was a further ramp perhaps seven minutes drive from the camping ground and that at Easter 1977 both were used. I accept the weight of the evidence confirms that the defendant did have the opportunity to be with the plaintiff on a drive of approximately 10 minutes from the ramp upstream of the caravan park.[7]
[7]In final submissions concerning the limitation issue, counsel for the defendant submitted the defendant ‘got the boat ramp confused’.

The defendant also disputed that the boat was ever retrieved with two people alone. He said this definitely did not happen. Having regard to the evidence of the other witnesses, I accept that it was possible for the boat to be retrieved from the water with two people. Indeed the ultimate description by the defendant of the manner in which this occurred tends to support this view. The defendant says that after bringing the boat into the bank another member of the group would hold the rope from the bank securing the boat while the defendant then backed the trailer into the water and then manoeuvred the boat onto the trailer. He ultimately agreed that putting the boat on to the trailer was a one man job, but says that backing the trailer in required someone each side of it. I do not accept this to be so having regard to the evidence of the other witnesses as to the manoeuvre in question. I also accept the plaintiff’s evidence that late in the day retrieving the boat was not a popular task.

The defendant also denied in evidence that he allowed the plaintiff to steer his car on the main road. Once again the evidence of the other family members and of the family friend supports the view that this did occur as part of the family culture. RA remembers steering cars from 10 or 11 onwards and remembers the plaintiff steering cars as a boy. He says the plaintiff could drive and back a car by 1977. The plaintiff’s sister also gave evidence that he was a competent driver at a young age and that children in her family would steer cars while seated next to the driver. AH observed the plaintiff driving a car in the driveway of the plaintiff’s home when he was a boy and steering a car at Corowa. In 1977, although only 11, the plaintiff was the tallest boy in his class and may have been in the order of 5 foot 10 inches tall. I am satisfied on the whole of the evidence that he did steer his uncle’s car whilst sitting next to him.

The plaintiff agreed in cross examination that he told some doctors the abuse started when he was about nine and that at one stage he had alleged the abuse occurred in 1976. He said the age estimate reflected his belief at the time he gave it and the error in the relevant year occurred because of a miscalculation made by him based upon motor vehicle number plates which he remembered. The plaintiff has a detailed recollection of family number plates and structured the chronological framework of his evidence around them. I accept his explanation that variations in dates given by him from time to time arose from honest errors in reconstruction of the relevant dates in his memory.

It was also put on behalf of the defendant that the large number of people in the group meant it was unlikely first that the defendant would take the plaintiff alone to retrieve the boat from the water at the end of the day and secondly it was unlikely the course of events the plaintiff describes would go unnoticed by others. I do not accept either of these propositions as materially assisting the defendant. I accept that there was an opportunity for the defendant to isolate the plaintiff at the end of the day’s water skiing when others were tired and he required an assistant.

The plaintiff says that in the two subsequent years after 1977, similar abuse to that which first occurred in 1977 again occurred during Easter family holidays at Corowa. He also recollects a specific incident in 1978 in which he was sleeping in a tent with other family members and the defendant showed the plaintiff the defendant’s erection.[8]
[8]Contrary to the defendant’s submission I accept this allegation is pleaded at 8(2)(ii) of the amended statement of claim.

The plaintiff says the abuse at Corowa in 1978 and 1979 was worse than in 1977 because the defendant had changed his boat to one with a bigger canopy, so people could not see into it as easily. The plaintiff says that on one occasion the defendant drove the boat further downstream, instead of upstream towards the ramp, and that he gave the defendant oral sex on his hands and knees under the dashboard.

In cross-examination the plaintiff also said that on one occasion when he was collecting firewood at Corowa the defendant abused him.

The defendant denies that any sexual activity occurred in which the plaintiff and he were involved. The defendant further submits that the allegations of subsequent events at Corowa are not properly particularised in the plaintiff’s further and better particulars. I accept this criticism but I also accept that the inadequate detail in the particulars has resulted from an understandable confusion concerning the places in relation to which particulars were sought. Reference is made to holidays at Kangaroo Island 1977, Pambula/Merimbula 1978 and Point Lonsdale 1979, but no reference is made to Corowa in 1978 and 1979.

In evidence the plaintiff said the abuse occurred at Corowa, Kangaroo Island and Point Lonsdale during family holidays. It also occurred on day trips to Melton. It did not occur during the holiday at Pambula. The plaintiff’s recollection was firm.

The plaintiff says when he returned to Melbourne with his family after Easter 1977, regular sexual contact continued to occur between the defendant and the plaintiff. The contact occurred:

· at the plaintiff’s home in Y Ave;

· at the defendant’s home in O Crescent;

· when the defendant took him to view motor cars on Friday nights;

· on further holidays and day excursions; and

· on an overnight stay at Ballarat.

There is no dispute that the defendant spent time at each of these locations when the plaintiff was present. The fundamental dispute is as to whether sexual contact occurred. There is also some dispute as to incidental matters of historical detail.

The plaintiff says that the house at Y Ave was a very big house and that his uncle ‘had the run of that house’. He says that on a number of occasions the defendant came into his bedroom at night and mutual masturbation, digital anal penetration and oral sex occurred. The plaintiff describes a specific evening when his parents were watching television and his uncle came to his bedroom when he had done his homework and was ready for bed. A sexual encounter ensued and digital anal penetration, masturbation and oral sex lasted 20 minutes to half an hour. Other occasions of abuse were always relatively quick in the order of 15 minutes to 20 minutes.

The plaintiff says further that on a number of other occasions his uncle pressed up against him with an erection while he was playing billiards at the Y Ave house. His uncle also engaged in sexual acts with him under the house and in the garage. The under house area was used to store children’s bikes and tool kits and a variety of other things. The items stored included a mini motor bike his uncle constructed for the children of the family utilising a motor mower engine. Most of the abuse occurred at night however and hence within rather than outside the house. The plaintiff was afraid of the dark. The abuse occurred on a weekly basis.

The defendant submits that the abuse is alleged to have occurred when two adults and five children were resident in the house and the family practice was not to lock internal doors. It is submitted that it is improbable that frequent abuse occurred which was undetected. The defendant stated that he only went to the under house storage area once and that he had ‘blood going everywhere’ afterwards. He says that there was no room for an adult to stand upright under the house.

The plaintiff says he also went on regular evening visits to car yards both with the defendant alone and occasionally with the defendant and others, mainly the plaintiff’s father. He says his uncle would get upset if the plaintiff’s father came along in addition to the plaintiff. His uncle had a passion for motor cars and would take the plaintiff to car yards in a number of suburbs (including Doncaster, Camberwell, Oakleigh, Hawthorn and Ringwood) to see new models of cars and obtain car parts. During these visits masturbation, digital anal penetration and oral sex again occurred both in and out of the defendant’s car. The sexual contact regularly occurred when the plaintiff was steering the defendant’s car. On one occasion when he was steering the defendant’s car his uncle said angrily to the plaintiff ‘keep your hands on the wheel and do as you’re told or you will be hurt.’

The defendant says that the visits to car yards occurred only a couple of times a month not weekly as the plaintiff said in evidence. He says that the visits to the car yards would have occurred during daylight hours, not in the evening, as the car yards were closed at night. The defendant also points to the improbability of sexual acts occurring while the plaintiff was steering his car on frequent occasions on main roads within the metropolitan area including roads such as Whitehorse Road, Mont Albert Road, Burke Road, Barkers Road and Union Road.

The plaintiff is adamant such acts did occur even when he was steering the vehicle with one hand.

Once again, for reasons I shall further explain, I accept that occasional acts of sexual abuse occurred on visits to car yards but I am not satisfied they occurred with the full frequency the plaintiff alleges.

The plaintiff says that in addition to sexual contact at his home and on visits to car yards he was also sexually abused when he attended his grandmother’s home in O Crescent at which the defendant also lived. He says in particular that the defendant masturbated him and also penetrated the plaintiff anally with his fingers while the plaintiff rode a stationary bike. He initially said this occurred 10 or more times but in cross-examination appeared at one point to say and confirm that it occurred only once. He said in evidence in chief that the bike was in the defendant’s first bedroom. The defendant slept in an annexe to this room. The first bedroom was cluttered with junk but also contained the bike. On one occasion the plaintiff’s father walked into the room as sexual contact was occurring and then turned and walked out. The plaintiff says he was also assaulted in the garage at O Crescent and in the annexe in which the defendant slept.

It was agreed between the parties that if called to give evidence the plaintiff’s father would say he did not see any sexual abuse of the plaintiff occur and it was further agreed the plaintiff’s father is not in the camp of either party.

In cross-examination the plaintiff agreed that on a number of occasions other children and in particular two of his cousins would have been present when he visited his grandmother’s home on Sundays. He also agrees that it was his father who took him to his grandmother’s home and that his father was always present on such visits. He says however that the abuse occurred on weeknights when his father and grandmother were accustomed to sit in the dining room. His father would read the newspaper while his grandmother sewed. He believes however that his father walked in and saw him being sexually abused on the blue bike on one occasion and ignored it.

The plaintiff disputes the proposition that the garage was so crowded that there was no room within it for the defendant to abuse him. He said in cross-examination that abuse occurred on the stationary bike both in the defendant’s bedroom and in the garage. In his initial statement of claim the abuse on the stationary bike was said to have occurred in the garage.[9] The statement of claim was amended to excise reference to the garage and the further and better particulars then provided by the plaintiff disclaimed abuse in the garage stating: ‘This is incorrect. The allegations relate to the defendant’s bedroom. The defendant took the plaintiff to his bedroom …’. Whilst it might be said that the plaintiff had been giving evidence for some time concerning matters which might be expected to cause him distress when he gave evidence about the stationary bike nevertheless the pleading and the evidence he gave about it were neither as consistent nor as clear as his pleading and evidence about a number of other matters. It seems probable that if abuse occurred when he was on the bike, his recollection and recounting of such abuse is complicated by his belief that his father failed to respond properly to such abuse. It is apparent that he feels significant anger towards his father. This said the plaintiff’s case as to the number of occasions on which abuse occurred on the bike is unconvincing. I accept that abuse occurred on the bike on at least one occasion but I am not sufficiently persuaded that it occurred on other occasions.
[9]Statement of Claim, para 6(i).

The plaintiff next says that the defendant also assaulted him on a series of family holidays. In particular he describes a holiday at Kangaroo Island where the defendant engaged in masturbation, digital anal penetration of the plaintiff and oral sex with the plaintiff in the defendant’s car and on other occasions when he was alone with the defendant. He says the abuse occurred each day. The family holiday lasted for three weeks to a month in January 1978. The defendant also showed him pornographic magazines on this holiday.

Likewise the plaintiff says the defendant abused him during family summer holidays at Point Lonsdale in the period between Easter 1977 and the commencement of boarding school in 1980. The abuse occurred when the defendant took the plaintiff walking in the sand dunes.

The defendant submits that the plaintiff and defendant were part of large family groups at both Kangaroo Island and Point Lonsdale and it is unlikely the plaintiff could have been selected for abuse in the way the plaintiff describes. I accept that the group nature of the holidays renders ongoing abuse of high frequency unlikely but I also accept the plaintiff’s case that the holidays described did offer the defendant opportunities to spend time with the plaintiff alone.

Once again I accept that some abuse occurred at Kangaroo Island and Point Lonsdale but not with the frequency expressed by the plaintiff.

The plaintiff also says the defendant abused him on day visits to Melton Reservoir on 10 to 20 occasions.

The defendant submits no allegation of misconduct at Melton was expressly pleaded in the statement of claim. In turn, no reference was made to abuse at Melton in the plaintiff’s further and better particulars because the plaintiff says the request for further and better particulars was expressed to relate to ‘holidays’ not day trips. The reference to holidays originates from the plaintiff’s own statement of claim. I accept the truthfulness of the plaintiff’s evidence that some abuse occurred at Melton but I am not persuaded it occurred on the number of occasions the plaintiff now recollects and describes. I further accept that the claim was not foreshadowed in the statement of claim and particulars.[10]
[10]Paragraph 10 of the amended statement of claim states: ‘From December 1979 until the plaintiff commenced boarding school in 1980, the defendant continued to sexually assault the plaintiff.’ The plaintiff’s further and better particulars make clear this allegation did not relate to Melton.

In December 1979, the defendant took the plaintiff to Ballarat and the plaintiff says they stayed overnight together at the Ambassador Motel. The defendant says it was a day trip only. The defendant says he would have seen some doctors’ receptionists before 9:00 and others during the lunch hour. The purpose of the trip was to make bookings with doctors in order to visit them the following year for the purpose of selling them pharmaceutical products. The plaintiff was on school holidays and the defendant says his mother asked the defendant to take the plaintiff with him. The plaintiff says that the defendant interfered with him in the defendant’s car in between visiting various doctors’ premises. The defendant took him to McDonalds for lunch and while there the plaintiff ‘threw up’ in the bathroom. Ultimately, the plaintiff says, the defendant took him to the Ambassador Motel. The motel was a brick motel on the Adelaide side of the Arch of Victory. The defendant says they did not stay overnight but that during the course of the day he showed the plaintiff the Ambassador Motel as being the motel at which he usually stayed. At one point the defendant said of the events of the day:

Question:And do you remember taking the plaintiff down for the day as you said?

Answer: Quite frankly no.

Shortly thereafter the defendant specifically recalled the plaintiff went to virtually all the defendant’s client surgeons and the defendant pointed out the Ambassador and told him: ‘that’s where I stay’.

The plaintiff says that the plaintiff and the defendant stayed overnight in a double bed. Masturbation and digital anal penetration of the plaintiff occurred. Then the defendant forced the plaintiff to straddle his erect penis and said ‘I’ve been waiting for this day for a long time’. There was some penile penetration of the plaintiff’s anus and the plaintiff jumped off because it stung. His uncle then got up and had a shower. Subsequently he again penetrated the plaintiff’s anus digitally. The plaintiff says there was a sexual encounter of one or two hours but he cannot recollect exactly how long. He says the defendant threatened him not to tell anyone of what had occurred. Further sexual activity occurred in the defendant’s car on the Ballarat visit involving masturbation, oral sex and digital anal penetration.

In cross-examination it was put on behalf of the defendant that in 1979 the Ambassador Motel was grey faced rather than with brick as shown in a photograph taken last year by the plaintiff. The plaintiff denied this.

After returning to Melbourne following the trip to Ballarat, the plaintiff says that an incident occurred at O Crescent in which the defendant asked to photograph the plaintiff’s erection before the plaintiff commenced boarding school. The plaintiff refused the request. In the further and better particulars of his claim the plaintiff alleges this occurred at Point Lonsdale but in cross-examination he was ultimately adamant that it occurred at O Crescent after he had been to Point Lonsdale and before he went to boarding school.

The plaintiff was also asked why if he had resisted the request for photographs of his penis he had not refused the other requests of the defendant to engage in sexual conduct. The plaintiff said he was by January 1980 old enough and big enough to refuse. As he ultimately explained events, the refusal occurred when he was about to escape the family environment to boarding school.

The plaintiff says that over the whole of the period from 1977 to January 1980 he had no difficulty in becoming aroused by the defendant’s conduct but felt disgusted because he was unable to control himself and ashamed because he had no knowledge of anyone else this had happened to. He thought no-one would believe him if he told them of what had occurred.

Tendency evidence

At the commencement of the trial I excluded certain tendency evidence which the plaintiff sought to adduce but admitted tendency evidence from the plaintiff’s brother RA and AH a former friend of the plaintiff’s brother NA.

Section 97 of the Evidence Act 2008 (‘the Act’) states:

(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1)(a) does not apply if—
(a)the evidence is adduced in accordance with any directions made by the court under section 100; or
(b)the evidence is adduced to explain or contradict tendency evidence adduced by another party.

Note
The tendency rule is subject to specific exceptions concerning character of and expert opinion about an accused (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

The tendency notices filed and served in this matter state:

(a) The evidence sought to be adduced from RA is of conduct which is alleged to have occurred in 1968 when RA was approximately nine years of age. The defendant was at RA's home. RA's parents were not at home. The defendant entered RA's bedroom and started to touch RA inappropriately, including touching around RA's genitals.

(b) The evidence sought to be adduced from AH is of an indecent assault of the plaintiff's brother NA, now deceased, which AH witnessed in 1975. The indecent assault took place in a vehicle owned by the defendant, AH and NA were in the back seat of the vehicle and the defendant was in the front seat. The defendant touched NA's genitals and placed his hand up the leg of NA's shorts.

The tendency notices allege that the matters asserted prove the defendant had a tendency to:

(a) act in a particular way, namely:

· to be sexually attracted to young males under the age of 16; and

· to act upon a sexual attraction to young males under the age of 16; and

· to commit indecent acts on young males under the age of 16; and

· that the acts before the Court were not isolated incidents.

(b) have a particular state of mind, namely a sexual interest in two brothers when both were under the age of 16 and the defendant was willing to act on this sexual interest.

(c) Alternatively, have a particular state of mind, namely a sexual interest in three brothers when each was under the age of 16 and the defendant was willing to act on this sexual interest.

In the event, the evidence of AH at trial did not go as far as the notice foreshadowed. AH is now a sergeant of police and gave matter of fact evidence which I accept as accurate. His evidence assisted the plaintiff’s case in respect to some matters of circumstantial detail relating to the launching and retrieval of the motor boat at Corowa and driving practices within the plaintiff’s family when the plaintiff was still a schoolboy. Insofar as the tendency evidence is concerned, however, AH stated that he was a hyper vigilant about sexual abuse because he himself was interfered with as a child for two years prior to the incident involving the defendant which he went on to described. He said that the defendant got into his car when NA was sitting in the back seat behind the driver and AH was sitting next to NA on the passenger side of the back seat.

After some initial joking the defendant reached back and tickled NA with both hands in the lower stomach and groin region. NA reacted suddenly as though he was shocked and AH formed the view that inappropriate touching had occurred. There was no conversation clarifying what had occurred.

This evidence falls short of the allegation made in the notice that the defendant placed his hand up the leg of NA’s shorts. Further it invites an inference of inappropriate touching, rather than directly describing touching the genitals.

I am not satisfied it is of significant probative value and place no weight upon it.

On the other hand, the plaintiff’s brother, RA, described the defendant coming to his bedroom when RA was nine, placing his hand under the covers and moving it down towards the genital area. RA blocked the defendant’s hand away and said ‘No’. The defendant then desisted. RA says that in early 2010 the defendant rang him and denied the plaintiff’s allegations of abuse. RA ‘recalled to him the incident of what he’d done to me and he straightaway changed the subject. He didn’t deny it …’. The defendant said in evidence he could not recall the phone call in 2010 and he cannot understand why.

In my view, RA’s evidence as to the incidents when he was nine does describe conduct which is of potentially significant probative value having regard to the factors in common with core allegations made by the plaintiff. In particular, the conduct described is that of the defendant towards a nephew, in like circumstances to a situation described by the plaintiff, and having a similar inappropriate sexual character having regard to the victim’s age and the position of the defendant as a close relative in a position of trust.

The defendant submits:

9.2The events involving RA … occurred over 40 years ago. He had not brought them to mind again until he was asked to do so in the last year in the context of what he now knew to be a case brought by the plaintiff against the defendant with respect to sexual abuse.
9.3Because of the effluxion of time the defendant could only give a bare denial without any particulars relating to any memory of the occasional baby sitting.
9.4There was baby sitting before the event and after the event and a continuing association between RA … and the defendant.
9.5In the circumstances and bearing in mind the effluxion of time, the ephemeral nature of the action, the conduct of RA … afterwards, this evidence said to be tendency, should not be regarded as probative of the allegations made in this case.[11]

[11]Submissions of the defendant.

I do not accept this submission. The evidence of RA was circumstantial and careful. He says he distinctly remembers the incident. He says his uncle’s hand was not adjusting the sheets, it was under the sheets. He gave this evidence despite the fact the defendant helped him in later life when he was commencing his career as a pilot. The fact that it was a ‘one off’ occasion does not make it any less likely that he recalls it. If anything it supports the probability that it has remained fixed in his memory. Likewise, both the fact that the defendant desisted when requested to do so by RA and RA’s young age mean that it is not surprising that the family relationship between RA and the defendant continued thereafter despite what had occurred.

In CGL v DPP,[12] the Court of Appeal observed:

Tendency evidence of this kind can, of course, be highly potent. Proof of a person’s tendency to commit acts of a particular kind, or to be sexually attracted to a person of a particular age or gender, can have significant probative value in relation to allegations that the person committed an act of that kind, or sexually assaulted a person of that age and gender, at the time(s) and place(s) alleged. It can also be highly prejudicial.[13]

[12](2010) 24 VR 486.

[13]Ibid, 496 [35].

The Court noted that unlike s 98(1), s 97(1) does not identify the basis on which evidence becomes admissible to prove the relevant tendency. It recorded that in that case, in accordance with the experience in other jurisdictions administering the same provision, the admission of the evidence was sought upon a like basis to coincidence evidence. The Court observed:

As a general rule, the greater the degree of specificity with which the similarities can be identified, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind. Conversely, the greater the degree of generality, the more difficult it will be to demonstrate that the evidence in question has ‘significant’ probative value and — even more so — to demonstrate that its probative value ‘substantially outweighs’ the very real prejudicial effect of evidence of this kind.[14]

[14]Ibid, 497 [40], note that in a civil case such as the present s 135, not s 137 (nor s 101), bears on the question of prejudice.

In the present case, I am of the view that RA’s evidence of the defendant’s behaviour towards RA is one of a series of factors which support the acceptance of the plaintiff’s evidence. It has significant probative value having regard to the other evidence adduced on behalf of the plaintiff.[15]
[15]It was also submitted on behalf of the plaintiff that a 2010 conversation between the defendant and RA included statements by the defendant which were ‘in effect’ discouraging RA to give evidence. I do not accept this evidence can be treated as demonstrating consciousness of guilt or as otherwise materially relevant.

Did the abuse occur?

I accept that the plaintiff must establish the fact of sexual abuse in accordance with the principles stated by Dixon J in Briginshaw:[16]

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish L.J. says: ‘No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct’. In the same way, in dealing with the question in what county the publication of a criminal libel had taken place, Best J. said: ‘I admit, where presumption is attempted to be raised, as to the corpus delicti, that it ought to be strong and cogent; but in a part of the case relating merely to the question of venue, leaving the body of the offence untouched, I would act on as slight grounds of presumption as would satisfy me in the most trifling cause that can be tried in Westminster Hall’. It is often said that such an issue as fraud must be proved ‘clearly’, ‘unequivocally’, ‘strictly’ or ‘with certainty’. This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.[17]

[16](1938) 60 CLR 336, 361 following. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 110 ALR 449.

[17]Ibid (citations omitted).

The circumstances of this case require a judgement to be made upon evidence which would attract a Longman warning in the context of the criminal law (absent statutory provision to the contrary). In Longman v The Queen, Brennan, Dawson and Toohey JJ said:[18]

The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or mention of the factors relevant to the evaluation of the evidence. That was not sufficient.

[18]Longman v The Queen (1989) 168 CLR 79, 90-91.

Likewise in the present case because of the delay since the events in issue, it is necessary to scrutinise the evidence with great care and consider the circumstances relevant to its evaluation, paying heed to the effect of lapse of time upon the capacity to test the plaintiff’s evidence.

I am satisfied to the requisite degree that the core allegations of sexual abuse made by the plaintiff have been established.

I am not satisfied, however, that the number of occasions on which sexual abuse occurred was as extensive as that recalled and described by the plaintiff at some points in his evidence. In so finding, I am not rejecting the plaintiff’s truthfulness but I do not fully accept his reliability in respect of some particular aspects of his evidence as to the extent of the occasions of abuse. It is not surprising given his young age at the time of the events in issue and the subsequent effluxion of time that there is some uncertainty as to the extent of the events of which he complains.

I have reached the general conclusion that the plaintiff’s case should be accepted with respect to its core allegations for the following reasons:

(a) The plaintiff’s evidence was convincingly circumstantial and substantially consistent when tested in cross-examination.

(b) The plaintiff’s evidence as to the place where the motor boat was taken out of the water at Corowa should be accepted, having regard to the evidence of the other witnesses.

(c) The other circumstances pointed to by the defendant as rendering abuse at Corowa improbable, do not in my view displace the opportunity to assault the plaintiff which arose when the boat was taken upstream in order to be taken out of the water at the end of each day. The overall number of persons in the group and the fact that the plaintiff’s brother RA and the witness AH recall a number of people usually being involved in the launching and retrieving of the boat do not render the plaintiff’s evidence improbable.

(d) I accept the plaintiff was able to back the trailer into the water satisfactorily at Easter 1977.

(e) The evidence as a whole also supports the plaintiff’s evidence that it was not uncommon for him to steer cars driven by adults in the family. I do not accept the defendant’s submission that it is unlikely he steered the defendant’s car on the drive from the boat ramp to the caravan park.

(f) The plaintiff’s evidence as to his state of mind after the initial abuse explains why no contemporaneous complaint was made. The psychiatric evidence (to which I will come) confirms the proposition that the failure to make complaint for many years is understandable.

(g) The tendency evidence given by RA tends to confirm the probability that the defendant made an initial sexual approach to the plaintiff of the type described by the plaintiff.

(h) The defendant’s evidence was vituperative[19] in its denials and aggressive in its assertion of facts which might demonstrate the abuse did not occur as alleged. Even allowing for the defendant’s age and the very substantial lapse of time since the events in question, the defendant’s evidence was not convincing in the terms in which it was expressed.

(i) The defendant’s evidence was not substantially tested by cross-examination. Insofar as it was tested his answers concerning the location of the boat ramp shifted and were unconvincing.

(j) Insofar as it was not tested the defendant’s evidence cannot be given the same weight as the evidence of the other witnesses who were tested in cross-examination. Senior counsel for the defendant accepted in final address that the Court would adjust the weight given to the defendant’s evidence because he was not cross-examined.

[19]The defendant referred to the plaintiff as SM meaning ‘splendide mendax’ or ‘pathological liar’ as he subsequently explained. He expressed himself angrily on a number of occasions.

I am satisfied initial sexual abuse of the type described by the plaintiff occurred at Corowa at Easter 1977. I am however unable to be satisfied that it occurred on more than two afternoons.

I am further satisfied that abuse occurred over the subsequent years up until December 1979 at the plaintiff’s home, at the defendant’s home and when the defendant took the plaintiff to visit car yards on evening trips.

I am satisfied that the defendant had repeat opportunities to abuse the plaintiff and took advantage of such opportunities.

I am not satisfied that such abuse occurred every week, but I am satisfied that it was regular and persistent. I am not satisfied the plaintiff was abused on weekly trips to car yards but I am satisfied that there were recurrent trips on which abuse occurred. I am not satisfied the plaintiff was assaulted on the stationary bike on more than one occasion but I am satisfied that he was abused both at his own home and at the defendant’s home on a regular basis.

The plaintiff’s evidence as to continuing abuse was fundamentally consistent and circumstantially compelling. The further abuse occurred within the context of the relationship established at Corowa. The tendency evidence of RA further supports the probability of such abuse. In addition, the plaintiff’s evidence was extensively tested in cross-examination and the defendant’s was not.

It was submitted that the plaintiff continued to see the defendant on group holidays,[20] between 1980 and 1985 and that this was inconsistent with the history of prior abuse the plaintiff now gives. I accept the plaintiff’s explanation that as an adult he did not feel threatened having regard amongst other things to his physical stature. I further accept that he deliberately guarded and concealed the history of what had happened to him and in effect sought to behave as if the abuse had not occurred.
[20]Such as that at Mildura of which video evidence was produced.

For like reasons to those set out above I am satisfied the defendant abused the plaintiff on return Easter trips to Corowa in 1978 and 1979, on family holidays at Kangaroo Island and Point Lonsdale, and on day trips to Melton.

I am also satisfied that the defendant took the plaintiff to Ballarat overnight in December 1979 and sexually abused him in the manner described by the plaintiff.

I am satisfied the abuse at Ballarat occurred as in effect the culmination of the pre-existing relationship. The plaintiff’s description of what occurred was fundamentally consistent and circumstantially compelling. The plaintiff’s evidence was fully tested in cross-examination. The defendant’s was not.

Lastly I am satisfied that before he went to boarding school the plaintiff rejected a request from the defendant to photograph his penis.

Medical evidence

The plaintiff relied on reports from Dr Thomas Kerrihard (his American psychiatrist), Dr Michele Roberts (his current Australian clinical psychologist), Dr Christopher Mulroney (his Australian family physician), and Dr Rod Farnbach (a previous treating Australian psychiatrist). A report was also obtained from Dr David Weissman (consultant psychiatrist), solely for the purpose of this proceeding.

The defendant tendered two reports from Dr Michael Saling, a clinical neuropsychologist.

Dr Kerrihard was the only medical witness to give oral evidence in this proceeding.

The plaintiff was previously treated by a Dr Robert Haik in Sydney in 1995 for depression following diagnosis with viral meningitis, and a Dr Tim Vendeusen in the United States from 1999 to 2001 for assistance in dealing with a relationship break down. The plaintiff maintains that he disclosed the abuse to Dr Haik but not Dr Vendeusen. Reference was also made to a Dr Dennis Shum treating the plaintiff, at least in terms of medication management, at some point after his return to Australia. No evidence from Dr Haik, Dr Vendeusen, or Dr Shum was put before the Court.

Dr Tom Kerrihard

Dr Thomas Nelson Kerrihard holds a medical degree from Harvard Medical School and MIT in 1994. He has completed a psychiatric internship at Cambridge Hospital, a fellowship at the Memorial Sloan Cancer Centre in New York City, and a postgraduate qualification in psychiatry.

Dr Kerrihard commenced treatment of the plaintiff on 31 May 2006 after referral from the plaintiff’s primary care physician (the American equivalent of a GP) and encouragement from his oncologist. He saw the plaintiff approximately 67 times between the date of referral and the writing of his report dated 5 April 2010 for both short appointments to address psychopharmacology issues and longer 50 minute psychotherapy sessions. There have been four subsequent appointments, the most recent of which in June 2011.

In his report, Dr Kerrihard noted that the plaintiff had come to him seeking treatment for ongoing relationship issues, anxiety, racing thoughts, rejection sensitivity and an overall ‘new level of frustration with his life’. The plaintiff had difficulties sitting still with his emotions, and often turned to activities when anxious, depressed, or angry, and ‘hid in his work’.[21]
[21]Dr Kerrihard’s Report of 5 April 2010.

He noted that the plaintiff disclosed the alleged childhood abuse in his initial evaluation. When questioned about this, Dr Kerrihard gave evidence that this disclosure was made in response to a general question and that the plaintiff was ‘almost shocked’ by having made the revelation as it had been kept so secret and he was surprised he had brought it up.

Dr Kerrihard’s summarised the plaintiff’s psychotherapy as follows:

[The plaintiff] explored multiple areas of personal history and personal history thought his treatment with me. From the beginning, specific relationships with family, friends and intimate partners were sources of discord for him. Tensions with his father were a constant theme in his psychotherapy. He felt unloved and unappreciated by his father. His relationship with his mother was clearly more a source of support for him. He felt her love and acceptance. [The plaintiff] was frequently enraged with his father, many session[s] were focused on his anger towards his father for his leaving little in his will and testament for [the plaintiff] and his siblings. Frequently, [the plaintiff] described upsetting phone calls with his father, often ending in cut offs in communication for weeks or months.
[The plaintiff] clearly identified problems arising from the series of sexual abuse events perpetrated by his uncle. He mentioned this series of abuses several times in the course of our treatment. [The plaintiff] was clearly angry about this history and also felt shame. [The plaintiff] often hesitantly addressed the topic. Attempts to further deepen the dialogue on this topic were stifled. Sexuality became a difficult topic to explore. [The plaintiff] often felt ashamed of his sexual self. He reported ejaculatory issues, which were particularly painful for the plaintiff to explore in therapy and often were a source of embarrassment when engaging in sexual activities. This source of shame became [an] evident obstacle in many aspects of his relationships. [The plaintiff] longed for a romantic relationship, but never felt it was realised. Themes of control and inadequacy were core struggles that recurrently interfered with close intimate relationships with men.
Intimate relationships were a recurrent topic in his therapy. He had one very close previous relationship while in Los Angeles, which predated our therapy. [The plaintiff] continued to feel affection and romance with this man, and recurrent desire for reunion with him was explored. No other man seemed to meet the expectations that [the plaintiff] had for his potential partners. He had difficulty feeling close to other men, often feeling an outsider or disconnected from men romantically and socially. He reported having close friends, but also often felt the need to find new friendships that met his standards. Dissatisfaction with his gay circle of friends was a repeated theme in therapy.
[The plaintiff’s] therapy sessions began to display a pattern: he would spend much of his session on superficial accomplishments or activities and only at the end of the session would he begin to discuss emotionally relevant material. We observed this pattern for many of his session[s]. His fear of emotional vulnerability became apparent. He was easily capable of displaying anger for situations and people in his life. It was much more difficult for [the plaintiff] to express sadness and insecurity. He felt comfortable taking control of situations, including psychotherapy sessions. The need for control was evident in many aspects of his life: relationships, career, and recreational activities. Vulnerability and lack of control easily angered [the plaintiff], it was however very difficult for [the plaintiff] to acknowledge sadness, depression or insecurity in the context of vulnerability.
[The plaintiff] made significant progress throughout the course of his psychotherapy. After years of treatment, he had more access to his vulnerable aspects of his personality. He became less defended and less focused on external success. His rage and racing thoughts diminished. [The plaintiff’s] most recent struggles with unemployment became a turning point in his ability to quickly acknowledge his suffering and his vulnerability. This allowed him to quickly connect in therapy and turn to critical issues early in each treatment session. These same issues that exposes his vulnerability also ultimately led to his return to Australia for the support of his family. He left for Australia in December of 2009 and his final session with me was on December 7th of 2009. The therapy relationship is still active and [the plaintiff] expressed interest in returning to therapy upon his return [to] the United States.

The differential diagnosis after the first visit was broad and included Bipolar Type II, traits of a personality disorder, Anxiety Disorder NOS,[22] Mood Disorder NOS, Organic Brain Injury from viral meningitis, all complicated by complex psychosocial and psychodynamic issues.
[22]NOS meaning Not Otherwise Specified.

Insofar as he came to an ultimate diagnosis, Dr Kerrihard stated in his oral evidence that:

In general I found him different over a series of evaluations.
The diagnoses I most frequently wrote were vague. 296.0 depressive disorder/mood disorder. Option – biopolar or personality issue. [The plaintiff] didn’t fit in any category. The organic disorders were dropped when I thought about them.

When asked whether engaging in illicit drug use, and suffering from anxiety, depression, obsessive behaviour, and low self-esteem were symptoms which are frequently seen or rarely seen in people who suffer from sexual abuse, Dr Kerrihard responded:

Well, it's hard to group them all as all common or all uncommon, and I do want to almost answer in a similar way that I answered your colleague. None of those are necessarily the list of symptoms that one would need to kind of diagnose, usually a common diagnosis is post traumatic stress disorder or if one's been sexually abused, but those all are potentially very common sequella of someone who has been sexually abused.

Dr Kerrihard said that the sexual abuse was a ‘significant factor amongst others’ associated with the plaintiff’s psychiatric state. He also noted that the plaintiff’s family social environment had been significant to his psychological development and it was not possible to say whether absent the abuse he would still have significant problems. He agreed that the abuse could be viewed as part of the family social environment.

In his opinion, the plaintiff initially had no insight into the sexual abuse and it was rare and difficult for him to talk about it. The primary obstacle from a psychiatric perspective to the plaintiff disclosing the abuse to his family or making allegations against the defendant was that the plaintiff was ‘so highly guarded with poor access to emotional states’. The plaintiff tended to discuss subjects about which he was angry and showing a degree of control (eg. his relationship with his father, his boyfriend, dissatisfaction with friends, work) frequently, but those areas that exposed vulnerability or shame (eg. the abuse, drug use) were not brought up much.

As to whether it is exceptional for someone not to tell somebody about abuse of this nature for some 28 years, Dr Kerrihard responded that it was common and that people carry around a sense of shame and guilt about this topic and find it easier to suppress it. In the plaintiff’s case, ‘his personality kept the secret safe… not in a conscious way, until he felt safe enough to start accessing memories and emotional states.’ Dr Kerrihard noted that his experience of the plaintiff was that he was ‘highly defended and guarded’ and that he tried to ‘tread lightly’ on topics in order to develop a relationship of trust. In this context ‘things began to come out slowly’ and there was ‘some advancement in his ability to talk about it’. This ‘shift’ was recorded in Dr Kerrihard’s notes around October 2009 when, he says, the plaintiff started to access true emotional states. It was not until he returned from Australia after he made the allegation however that he ‘truly came forth’.

In his report, Dr Kerrihard noted that this shift (or as he termed it in his report, this ‘turning point’) coincided with the plaintiff’s struggles with unemployment in such a manner as to enable him to quickly acknowledge his suffering and vulnerability and connect in therapy and turn to critical issues early in each treatment session.

Dr Kerrihard said that he did not encourage the plaintiff to tell his family or the police but in the back of his mind felt that would be a positive step. The plaintiff however maintains that while early on he did not receive such encouragement, there came a point where Dr Kerrihard did encourage him to tell his father. Dr Kerrihard has no recollection of preparing with the plaintiff to disclose the abuse to the plaintiff’s family. He also has no recollection of discussing the recurrent nightmares which the plaintiff made repeated reference to in evidence, at one point the plaintiff saying ‘we used to talk about it all the time.’

When asked whether there was anything in the behaviour of the plaintiff in both his history and/or what he told him in psychotherapy that caused him to doubt that the plaintiff had suffered from sexual abuse, Dr Kerrihard responded ‘Um, never, no.’

Dr Kerrihard gave evidence that since the psychiatric assessment in May 2010, there have been advances in the Plaintiff’s overall psychiatric condition and his ability to confront the allegations of childhood molestation but his overall presentation of being guarded, angry and pressured continues.

When questioned as to the extent to which the plaintiff will require ongoing treatment for effects relating to the abuse, Dr Kerrihard was of the opinion that there was ‘still a lot of work to do on the issue’ and the plaintiff would require intensive psychotherapy (a minimum of once, though optimally twice, per week) and medication to contain anxiety and mood. Treatment duration is seen in terms of years, possibly life-long as the abuse has shaped his identity and ability to relate and connect to people. Dr Kerrihard later said he may have exaggerated this point and that a person ‘could make significant progress in years or ten years’, but ‘I think he's got a lot of work’. Dr Kerrihard noted that the cost of a psychotherapy consultation with a consultant of similar experience[23] was priced as follows: initial evaluation US$425-600; follow up consultations US$250-300.
[23]Dr Kerrihard is soon to dissolve his practice and refer patients to other practitioners.

[38]Ibid, [39]-[40].

In Clark each of the other members of the Court agreed with the reasons of the Chief Justice in part and in particular agreed that no extension of time should be granted because a fair trial was no longer possible on the facts.

To like effect to the passage in her Honour’s judgment last quoted above, Winneke P stated:

… although the discretion invested in a judge to extend the time for bringing an action is a wide one, it is nevertheless one which is to be exercised judicially in accordance with the relevant factors. Those factors should be informed by the purposes which underlie the statutory prescription of ‘limitation periods’, and extensions thereto, which were discussed by McHugh J in the Brisbane South case (supra).[39]

[39]Ibid, [65].

Charles JA expressly agreed with the observations of the President concerning the Brisbane South case. Eames JA stated:

In Brisbane SouthRegional Health Authority v. Taylor[40] McHugh, J. spoke of the ‘presumptive prejudice’[41] which applies, and in my opinion the fact that s.23A(3)(b) uses the words ‘the extent . . . there is prejudice’’ is an acknowledgment of that presumption. I do not take Buchanan, J.A. as having concluded otherwise in Tsiadis v. Patterson[42]. Indeed, his Honour cited and adopted the underlying rationales stated in the judgment of McHugh, J., when saying as to the circumstances in Tsiadis that: ‘The lapse of time since the occurrence of the accident alone warrants an inference of prejudice. Not only do memories fade; evidence which might have been available may be lost without any knowledge of the loss’[43]. His Honour said that ‘s.23(3)(b) requires the court to have regard not only to established prejudice, but also to consider the extent to which there is likely to be prejudice’[44]. As his Honour held, however, the terms of s.23A do not permit the court to reject an application by virtue of prejudice (actual and potential) ‘considered alone’[45]. His Honour’s conclusion as to the effect of s.23A(3) was that :
‘Prejudice to the potential defendant is to be considered together with all the circumstances of the case, although in a particular case it may be very significant if it is so severe as to preclude a fair trial of the applicant’s claim’.[46]

That statement is not inconsistent with the statements of McHugh, J. in Brisbane South. Whilst emphasising the continuing force of the rationales behind limitations legislation McHugh, J. acknowledged that the presumptive prejudice might be insufficient to resist an application for extension of time…[47]

[40](1996) 186 CLR 541, cited in Clark, [85].

[41]At 555, cited in Clark, [85].

[42](2001) 4 VR 114, cited in Clark, [85].

[43]Tsiadis, [32] (emphasis of Eames JA), cited in Clark, [85].

[44]Tsiadis, [22] (emphasis of Eames JA), cited in Clark, [85].

[45]At [31], cited in Clark, [85].

[46]At [31], cited in Clark, [85].

[47]Clark, [85] and [86].

Authority thus makes clear that prejudice both proven and potential resulting from delay is an important factor affecting the exercise of the discretion under s 27L. Further, that exercise is to be undertaken recognising the underlying rationales for limitation periods.

Synthesis

The relevant task the Court must ultimately undertake is that articulated by Buchanan JA in Tsiadis in respect of s 23A:

The matters which the court is required by s 23A to take into account cannot all be weighed against each other. For example, prejudice to the [plaintiff] in being unable to recover any compensation cannot be measured against prejudice to the [defendant] in conducting her case. Rather, the court must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the [plaintiff] bears the onus of persuading the court that it is just and reasonable to extend the limitation period.[48]

[48]Tsiadis, [33].

Similarly Callaway JA stated:

The language and structure of [s 23A] require a synthesis of incommensurable considerations for the purpose of deciding whether it is just and reasonable to extend the limitation period.

I shall deal with each of the specific factors listed in s 27K before elaborating my conclusions.

(a) the length of and reasons for the delay on the part of the plaintiff

It was accepted by both parties that the relevant delay for the purposes of sub-ss (a) and (b) was the total delay between the abuse and the issuing of proceedings in 2010, and not merely the additional delay since the expiry of the limitation period.[49] The relevant delay is thus a period of 33 years. The reasons for delay are principally that the plaintiff was not psychologically able to publicly acknowledge the fact of the abuse, and not relevantly aware of his psychiatric injury, until 2009. I shall return to these matters below.

(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant

[49] Koumorou v The State of Victoria [1991] 2 VR 265, 271 although see the decision of Beach J in Delai v Western District Health Service [2009] VSC 151 where his Honour, while preferring the reasoning of Brooking J in Koumorou, left open the possibility that the new discoverability provisions have altered the position with respect to delay.

Any substantial delay, particularly delay of the magnitude in the present case, gives rise to a presumption of prejudice to the defendant of the sort identified by McHugh J in Brisbane South. Section 27L requires the Court to have regard not only to established prejudice but also to consider the extent to which there is likely to be prejudice.

In addition to this general or presumptive prejudice, the defendant pointed to three sources of specific prejudice:

(a)The death of the grandmother who lived at … O Crescent at the relevant time.
(b)The inability of the Defendant to recall matters which underpin the circumstances of the alleged abuse.
(c)The accuracy of the memory of the Defendant in respect of matters such as:
·     The location of the boat ramp;
·     Whether and in what circumstances he would be in the bedroom with the bike;
·     Whether and in what circumstances he was in the bedroom with RA (the tendency evidence);
·     Whether and in what circumstances the events described by [AH] occurred (the tendency evidence);
·     The circumstances by which the boat was retrieved from the water and by whom;
·     Where he stayed at Corowa …[50]

[50]Defendant’s submissions re Limitation of Actions Act, p 3.

Insofar as the death of the plaintiff’s grandmother is concerned, I am prepared for present purposes to assume that if she were alive and able to give evidence the probability is that she would give evidence she observed no indication of sexual contact between the defendant and the plaintiff at the O Crescent house. In my view having regard to the evidence as a whole such evidence could not materially affect the probability that clandestine sexual contact of the type I have identified did in fact occur. It would tend to support the conclusion I have reached that the Court should be satisfied that such contact occurred at that location on only a limited number of occasions. I am not satisfied the death of the plaintiff’s grandmother has prejudiced the defence case materially or at all.

Insofar as the inability of the defendant to recall matters which ‘underpin’ the circumstances of the alleged abuse is concerned, no specific matters were identified. It seems to me that this is really no more than a restatement of the general presumptive prejudice which must be accepted as inherent in delay of the length here in issue.

Insofar as the accuracy of the defendant’s memory is concerned, the matters identified relate to circumstances of opportunity for the sexual abuse in issue. Insofar as the location of the boat ramp and the circumstances in which the boat was retrieved are concerned, I do not accept the defendant has been prejudiced by inaccurate memory. I have simply been persuaded by other evidence as to the truth of the situation. Once again the true prejudice in respect of these matters is the general prejudice which may be presumed to have arisen from the elapse of time. Neither the plaintiff nor the defendant can now adduce independent evidence from others of direct recollection as to whether the plaintiff was taken upstream by the defendant alone to retrieve the boat.

Insofar as the defendant’s recollection of whether and in what circumstances the plaintiff would be with the defendant in the defendant’s bedroom with the stationary bike is concerned, there was as I understand it no controversy that the plaintiff had access to the defendant’s bedroom and the bike on occasions of visits to the grandmother’s house. The issue was simply whether abuse occurred in this context.

Similarly, there was no contest as to the fact the defendant babysat RA on occasions. The issue was simply whether inappropriate touching occurred in this context. I have rejected the tendency evidence of AH as probative of the occurrence of sexual abuse and no question of prejudice now arises with respect to it. Insofar as the defendant’s lack of clear recollection of where he stayed at Corowa is concerned, this is again reflective of general presumptive prejudice. There is no dispute that he camped at Corowa together with the plaintiff’s family and friends. The elapse of time has precluded both the defendant and the plaintiff from calling direct evidence from third parties as to whether the plaintiff slept in the same tent as the defendant in circumstances which would have facilitated the incident in which the plaintiff says the defendant exposed his penis to the plaintiff.

When the above matters are put together I am not persuaded the defendant has suffered specific prejudice of the type which can be said to arise when a contemporaneous record such as a hospital or police file is destroyed. Nor has there been a loss of a direct witness to facts in issue. The abuse in issue is alleged to have occurred covertly and in the absence of others.

The true prejudice to the defendant is that of the type elaborated in the South Brisbane case. A delay of 34 years must necessarily impact upon the capacity of the defendant to address the circumstantial matrix in which the offending is said to have occurred. It may be that there are circumstances upon which the defendant could have relied which he cannot now recall and/or of which independent evidence cannot now be given. The defendant submits:

In this case the credibility of the defendant with respect to his account of the alleged abuse and his response to the tendency evidence is critical.
The capacity of the defendant to recall events and to recall the underpinning circumstances of events has been very seriously compromised by the effluxion of close to 35 years between the alleged events and the proceeding.

Despite the force of this submission I am not persuaded that the matters raised by the defendant when evaluated in the context of the evidence as a whole mean that a fair trial of the plaintiff’s case against the defendant can no longer be held.

(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant

It was common ground that this consideration was not relevant to the exercise of the discretion.

(d) the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability

Counsel for the plaintiff conceded that this subsection refers only to legal as opposed to physical or mental disability. This appears to be the preferable interpretation.[51]
[51]See eg Delai v Western District Health Service [2009] VSC 151, [42].

(e) the time within which the cause of action was discoverable

Subsection (e) comprises the major difference between s 27L and the old s 23A. When a cause of action is discoverable is dealt with by s 27F:

(1)For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts—
(a) the fact that the death or personal injury concerned has occurred;
(b)the fact that the death or personal injury was caused by the fault of the defendant;
(c)in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2)A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.
(3)In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

The word ‘fault’, for the purposes of s 27F(1)(b), has its ordinary meaning. The plaintiff must know that the personal injury was ‘caused by an action which the defendant ought not to have performed, or should have performed differently, or by an omission by the defendant to perform an act which the defendant ought to have performed’.[52]
[52]Spandideas v Vellar [2008] VSC 198, [41] per Kaye J; although see Baker-Morrison v New South Wales [2009] NSWCA 35, [31] – [44].

Counsel for the defendant conceded that if the plaintiff’s evidence and the evidence of Dr Kerrihard is accepted, the plaintiff would not have had the knowledge, nor ought to have had the knowledge, referred to in sub-paras (a), (b) and (c) until 2008 or 2009. Counsel’s written submissions state:

Although the cause of action was discoverable in a basic way by the time the plaintiff was say 20 years of age i.e. he knew that he was (on his case) abused.
The definition of ‘discoverable’ involves considerations referred to in section 27F(1)-(3). The evidence of the plaintiff, if accepted, and Dr Kerrihard suggest that by reason of shame, guilt and the like the plaintiff was not in a position to take the reasonable steps to discover the cause of action constituted by serious psychiatric injury caused by sexual abuse.
If the Court accepts the plaintiff’s evidence, then the circumstances in section 27L(1)(e) would determined in the plaintiff’s favour.[53]

[53]Defendant’s submissions re Limitation of Actions Act, p 4.

Counsel referred to Rawlings v Rawlings,[54] a decision of the Court of Appeal concerning the question of whether a worker suffering psychiatric injury knew of the ‘incapacity resulting from the injury’ for the purposes of the time bar under s 135AC of the Accident Compensation Act 1985. There, the Court said:

If a worker loses a limb or is burned or deafened or damages his or her spine in the course of employment, the nature and extent of the injury and the incapacity of which it is productive are to a large extent obvious. If, however, a worker suffers a mental or behavioural disturbance, its existence, nature and extent may well go undetected. As Handley JA explained in Commonwealth v Smith, so much is really the inevitable consequence of the law’s limitation of compensable mental problems to conditions which psychiatric medicine classifies as psychiatric injury. Although human beings may suffer all sorts of significant emotional and mental problems from time to time, neither they nor anyone else, short of a psychiatrist or psychologist is ordinarily likely to perceive the problem as arising out of a permanent severe mental or permanent severe behavioural disturbance or disorder. In most cases, it is only when and if they are so diagnosed that they are capable of knowing that the incapacity of which they were aware arises out of that condition.[55]

[54]Morris & Joan Rawlings Builders And Contractors v Rawlings [2010] VSCA 306.

[55]Ibid, [47]. Emphasis added.

I accept that the evidence of the plaintiff and Dr Kerrihard justifies the concession made on behalf of the defendant. I further accept that the progressive state of mind described by the plaintiff in his evidence is consistent with the psychiatric framework described by Dr Kerrihard. It was not until 2009 that the plaintiff came to understand the nature of the psychiatric injury he had suffered. It was not until the plaintiff returned to Australia in late 2009 that the plaintiff could acknowledge the fact of the abuse to his family. It is also reasonable to accept that a perceived threat of abuse to the plaintiff’s nephew by the defendant was the ultimate trigger which led the plaintiff to disclose to his family the history of the defendant’s sexual abuse of the plaintiff. The state of mind which required a trigger of this type was the product of a personality significantly damaged by the sexual abuse suffered by the plaintiff. In turn, this led promptly to a family meeting and the institution of this proceeding.

(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages
(g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.

The defendant also concedes that these sub-sections raise factors which are potentially in the plaintiff’s favour having regard to the evidence of the plaintiff and Dr Kerrihard. It is accepted by the defendant that that evidence would support the conclusion that by reason of shame, guilt and other feelings consequent upon the abuse the plaintiff was not in a position until 2008 to take reasonable steps to discover the cause of action constituted by serious psychiatric injury resulting from sexual abuse. In my view, the evidence supports the conclusion the plaintiff was not in a position to obtain legal advice until late 2009.

Section 27L(2) (a) whether the passage of time has prejudiced a fair trial of the claim; (b) the nature and extent of the plaintiff's loss; (c) the nature of the defendant's conduct

Consideration of the matters emphasised by s 27L(2) on balance favours the extension of time.

(a) For the reasons I have stated, I am not persuaded that a fair trial has not been possible in this matter. Nevertheless I accept that the defendant’s case must necessarily have been hampered to some extent by the effluxion of time and in particular hampered with respect to circumstantial evidence as to contextual details.

(b) For the reasons I have already set out, I am satisfied the plaintiff was subjected to extended and serious sexual abuse which has had a significant ongoing effect upon him. The psychological consequences of the abuse are directly linked to the delay which has occurred in the making of public allegations against the defendant by the plaintiff.

(c) The defendant’s conduct included threats to the plaintiff not to tell of the abuse. Such threats contributed to the psychological consequences of the abuse which led the plaintiff to keep the abuse ‘locked up’ until 2008.

Consideration of the circumstances of the case as a whole including the matters specified in s 27L(1) supports the conclusion that time should be extended. It follows from my analysis of the specific factors which are relevant to the exercise of my discretion that such factors favour the extension of time save for the extent of the delay which has occurred and the prejudice which must be presumed to be inherent in that very long delay. Having regard to all the circumstances of the case it is just and reasonable to order the extension of the period of limitation applicable to the plaintiff’s cause of action until the date of issue of this proceeding. This is so despite the length of the delay in issuing the proceeding. If the evidence of the plaintiff and Dr Kerrihard is accepted then the plaintiff was not able to promptly respond to the cause of action until 2009. The plaintiff has accordingly acted promptly and reasonably in bringing the present action. The nature and extent of the plaintiff’s loss are significant. The duration of the plaintiff’s psychiatric injury is significant. The nature of the defendant’s conduct has directly contributed to the delay which has occurred in the plaintiff’s injury becoming discoverable and in the institution of this proceeding.

The delay has not prevented a fair trial of the claim and has not resulted in specific material prejudice in respect of the evidence available. Accordingly, I propose to order that the limitation period be extended to the date of issue of this proceeding.

I record for completeness that counsel for the plaintiff submitted that the fact the defendant’s abuse of the plaintiff constituted a gross breach of trust towards a boy of vulnerable age was relevant to my discretion in respect of the limitations issue. It is unnecessary to rule on this submission but if it is correct the matter relied on would further support the conclusion I have reached in any event.

Quantum

The plaintiff seeks general damages for pain and suffering and loss of enjoyment of life. He also seeks aggravated and exemplary damages.

The defendant’s counsel conceded that if the plaintiff’s allegations were made out ‘necessarily the award of general damages is made for significant damage to the plaintiff psychologically over many years the consequences of which are still with the plaintiff.’

I assess general damages for pain and suffering and loss of enjoyment of life in the sum of $200,000. The award must take into account the initial anguish and psychological damage suffered by the plaintiff during the abuse and the consequent effects upon his developing and adult personality.

It must reflect the fact that I accept that there have been and will continue to be ongoing adverse effects upon the plaintiff’s enjoyment of life of a significant nature. As I have said, I accept Dr Weissman’s diagnosis of a chronic adjustment disorder with mixed emotional features and disturbance in behaviour. I also accept the plaintiff’s account of his initial and ongoing symptoms in the respects I have described above.

Conversely, the award must also take into account the fact that the plaintiff has successfully engaged with professional life. As the GAF ratings recorded by Dr Kerrihard indicate the plaintiff’s problems in his adult years have principally resulted in impacts upon his emotional life.

I also accept there is evidence of improvement in the plaintiff’s condition over recent years. Dr Kerrihard described him as having made significant progress through the course of his psychotherapy. It is apparent that the disclosure to his family of the sexual abuse which he suffered as a child has been a significant step. I also accept the defendant’s submission that the resolution of this proceeding may be of substantial benefit to him. As against this, the bulk of the medical opinion as to prognosis is guarded.

In assessing general damages I have also taken into account that, as the defendant submits, the plaintiff has suffered from a number of vicissitudes in his life other than the abuse forming the basis of this claim. I accept that stresses from relationship problems, loss of employment, ADHD and substance abuse must be discounted in assessing the effects of the sexual abuse upon him. Nevertheless it is apparent that, as Dr Kerrihard’s opinion and the weight of the medical evidence as a whole indicates, the sexual abuse has had a significant ongoing effect upon the plaintiff’s psychiatric state and is likely to continue to do so.

I turn then to the question of aggravated damages. As the High Court stated in Lamb v Cotogno,[56]

Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensation and are awarded ‘as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself’: Wilkes v. Wood, per Pratt L.C.J.[57]

[56](1987) 164 CLR 1, 8.

[57](1763) Lofft I, at p 19 [98 E.R. 489, at pp. 498-499].

In Carter & Anor v Walker & Anor,[58] the Court of Appeal stated:

Aggravated damages may be awarded where the defendant has acted, either in committing a tort or thereafter, with ‘contumelious disregard’ of the plaintiff’s rights, in an insulting or high-handed way, or with malice. It is a key requirement that such conduct increased the plaintiff’s suffering. The theory is that aggravated damages are compensatory. [59]

[58][2010] VSCA 340.

[59]Ibid, [283] (citations omitted).

I assess aggravated damages at $20,000. I accept the defendant’s submission that the emotional hurt inflicted by the abuse is substantially compensated for by an appropriate award of general damages. Nevertheless, a further amount is properly awarded for the plaintiff’s mental anguish and humiliation flowing from the manner in which he was abused. The plaintiff’s evidence records domination and consequent humiliation for which compensation must be given beyond that for pain and suffering and psychological consequences.

I turn then to the question of exemplary damages. In Carter & Anor v Walker & Anor,[60] the Court of Appeal further stated:

Exemplary damages are damages over and above those necessary to compensate the plaintiff. They are awarded to punish the defendant. They are intended to act as a deterrent to the defendant, and to others minded to behave in a like manner. They are also intended to demonstrate the Court’s disapprobation and denunciation of such conduct. Such damages 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. Often, they are sought in cases involving allegations against the police of assault and battery.
The law allows for both aggravated and exemplary damages to be awarded in respect of the same tort. It is necessary, however, in such cases, to be wary of overcompensation. There is a risk in awarding both compensatory and punitive damages, arising out of exactly the same wrongdoing, that the plaintiff will receive an unwarranted windfall. That risk is accentuated by the recognition that, in reality, there can be a punitive element in aggravated damages.[61]

[60][2010] VSCA 340.

[61]Ibid, [284]-[285] (citations omitted).

I fix exemplary damages at $30,000. In my view the Court must award a further amount beyond compensatory damages to reflect its condemnation of the gross breach of trust involved in the deliberate continuing sexual abuse of a child which occurred between the defendant and the plaintiff. Despite the defendant’s age, there is also in my view a legitimate element of deterrence in such an award. The compensatory damages I have assessed are not sufficient to render exemplary damages unnecessary.

I assess the claim for past medical costs at $7,000 being approximately 50 per cent of the sum paid out. I accept the defendant’s submission that the treatment received from Dr Kerrihard has been in significant part triggered by reaction to other stressors in the plaintiff’s life.

I assess the claim for future medical costs at $10,000. The claim is attended by material uncertainty. The costs quantified by Dr Kerrihard assume that the plaintiff will continue residence in Los Angeles and received ongoing treatment there. In final submissions the plaintiff sought the costs of psychiatric treatment for two years and psychological treatment for three years. The extent of future treatment for the consequences of the plaintiff’s sexual abuse is uncertain and must also be discounted for future vicissitudes. In the circumstances, I am not satisfied a figure of more than $10,000 for future medical costs has been made out.

Conclusion

I will order that the limitation period with respect to the plaintiff’s claim be extended pursuant to s 27K of the Limitation of Actions Act 1958 until the date of issue of this proceeding.

There will be judgment for the plaintiff in the sum of $250,000 in respect of general damages (including aggravated and exemplary damages) and $17,000 in respect of special damages. I will hear counsel with respect to questions of interest and costs.

[2011] VSC 429

1 September 2011