Gregory v State of New South Wales

[2009] NSWSC 559

CITATION:	Gregory v State of New South Wales [2009] NSWSC 559
HEARING DATE(S):	10-21 November 2008; 2-11 February 2009
JUDGMENT DATE :	19 June 2009
JUDGMENT OF:	Fullerton J
DECISION:	Judgment in favour of the plaintiff.
CATCHWORDS:	TORTS - negligence - personal injury - psychiatric/psychological illness - school bullying - causation - damages - non-economic loss - economic loss
LEGISLATION CITED:	Civil Liability Act 2002
CATEGORY:	Principal judgment
CASES CITED:	Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 Browne v Dunn (1893) 6 R 67 Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Purkess v Crittenden (1965) 114 CLR 164 R v Storey (1978) 140 CLR 364 Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 State of New South Wales v Burton [2006] NSWCA 12 State of New South Wales v Moss [2000] NSWCA 536; 54 NSWLR 536 Watts v Rake (1960) 108 CLR 158
PARTIES:	David Jonathan Gregory (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	SC 2007/20256
COUNSEL:	R McIlwaine SC/G Preston (Plaintiff) AC Bridge SC/M Fordham (Defendant)
SOLICITORS:	Rhodes Legal (Plaintiff) Hicksons Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

FULLERTON J

19 JUNE 2009

2007/20256 DAVID GREGORY v STATE OF NEW SOUTH WALES

JUDGMENT

The Pleadings

1 The plaintiff seeks an award of damages to compensate him for the mental harm he suffered as an adolescent as a result of being subjected to bullying and other generalised mistreatment by fellow students at Farrer Memorial Agricultural High School (“Farrer”) in breach of the duty of care the defendant owed him as a student under its care and control. He also claims damages for economic loss resulting from the impairment to his earning capacity over discrete periods since graduating from Farrer and extending into the future.

2 The proceedings were commenced in the District Court on 30 June 2006, and subsequently removed to this Court after the plaintiff successfully applied for an extension of the limitation period within which to bring the proceedings. The proceedings are governed by the Civil Liability Act 2002 (“the Act”).

3 By a defence filed on 2 January 2007 the defendant admitted that by reason of its responsibility for the management, administration and operation of Farrer, including relevant responsibility for the supervision of the student body at the school, it owed the plaintiff a duty of care to protect him from the foreseeable risk of mental harm as provided for in s 32 of the Act, but denied that it breached its duty of care.

4 On 21 October 2008 the defendant filed an amended defence admitting breach but limited to some only of the particulars as pleaded in the statement of claim. They are as follows:

(a) Failing to exercise due and proper care in relation to the plaintiff’s general welfare;

(b) Failing to have in place a system of supervision whereby its servants and/or agents the defendant would have prevented students at the school from mistreating the plaintiff;

(d) Failing to exercise adequate control over its students to prevent mistreatment of the plaintiff;

(y) Allowing a system known as the SACK system to operate whereby older boys exert power over younger boys and engage in bullying as a means of control;

(aa) Allowing students at the school the opportunity to mistreat the plaintiff;

(dd) Failing to have installed procedures which would adequately deal with the mistreatment of the plaintiff by other students.

5 The plaintiff did not seek to persuade me that the remaining particulars of breach as pleaded were causative of additional harm sounding in damages. However, to the extent that the amended defence did not expressly acknowledge the defendant’s admission of liability by reason of its failure to investigate the plaintiff’s complaints of mistreatment and to act upon them, and to the extent that breaches of that kind were also established on the evidence, the plaintiff claimed an entitlement to have that considered in the calculation of damages for non-economic loss because the mental harm he suffered was intensified by sustained inaction on the defendant’s part.

6 The plaintiff also sought to persuade me that the failure of the staff of Farrer to provide him with support or assistance of any kind in circumstances where they were well aware of the mistreatment he was subjected to, rendered him susceptible to being distrustful of those with whom he shared a collegiate relationship as a teacher from 2001, thereby giving context to his preference for forming alliances with students under his care and, to the extent that this behaviour was relied upon to ground his dismissal from his teaching position in 2005, the defendant was liable in damages for the consequential loss of income as a full-time teacher from that time.

Damages for non-economic loss in the Farrer years

7 The defendant conceded that the plaintiff was entitled to damages for non-economic loss whilst he was a student at Farrer between 1991 and 1996 (a time frame referred to in the proceedings as “the Farrer years”) since it was the shared view of Drs Diamond and Brown (the forensic psychiatrists called respectively by the plaintiff and the defendant) that sustained mistreatment of various kinds at the hands of fellow students during those years materially contributed to him suffering a diagnosed psychiatric illness or illnesses from at least 1994. However, in light of the considerable disagreement between the doctors as to the range of psychiatric illnesses the plaintiff suffered from at this time, including the chronology of their onset, the severity of associated symptoms and the degree to which illness impacted adversely on the plaintiff’s psychosocial functioning and development as an adolescent, there was no agreement between the parties as to the quantum of such an award.

8 The plaintiff submitted that he was entitled to an award of damages on the basis that the severity of his non-economic loss, as defined in s 3 of the Act, approximated a most extreme case of its kind, as that concept is utilised in s 16(3) the Act. The defendant submitted that the severity of his loss fell well short of a most extreme case and approximated his loss at something in the order of 20 per cent of the worst case. Neither of the parties referred me to other decisions for the purpose of assisting in the calculation of damages, an approach expressly provided for in s 17A(2) of the Act.

9 The evidence bearing upon the plaintiff’s claim under this head of damage came from a number of sources. The plaintiff gave detailed evidence of his experiences at Farrer. He described being subjected to a sustained campaign of terror, abuse, humiliation and vilification on a daily basis from midway through Year 7 in 1991 until he graduated from Farrer in 1996 after completing Year 12. He also described progressively more entrenched feelings of fear, isolation, hopelessness and sadness after being forced to endure mistreatment from the other students without the assistance or intervention of teaching staff over that period. He gave graphic evidence of the various measures he took in an effort to deal with his predicament including obsessive washing with hospital grade disinfectant on a daily basis from as early as 1993 in an effort to rid himself of what he experienced as contamination after being at school and in contact with his oppressors. In addition, in his senior years at high school, he cut himself with razor blades on his forearms and legs. The plaintiff’s evidence and other materials detailing an extensive catalogue of his feelings of isolation, inadequacy and despair associated with the recurrence of illness in the post-Farrer years is also said to properly sound in damages for non-economic loss assuming the issue of causation is resolved in the plaintiff’s favour.

10 In final submissions Mr Bridge of Senior Counsel challenged the plaintiff’s reliability (and to a lesser extent his honesty) in the descriptions he gave of the type of mistreatment that he suffered at school, the period over which it extended, his reaction to it and the way it impacted upon his curricular and extracurricular activities. In short, I was invited to find that he deliberately exaggerated the duration and extent of mistreatment and his reaction to it, including the persistence or regularity of the self-harm and other compulsive behaviour. The defendant submitted that this was borne out by contemporaneous records of various kinds which reflect favourably upon the plaintiff’s physical and psychological health as an adolescent and reflect favourably upon his general level of intellectual and social functioning, despite the fact that he did not apparently enjoy friendships with any of his peers and despite the fact that he was the victim of taunting and abuse at the hands of some of them.

11 The defendant also submitted that a document the plaintiff produced in 1994 in the form of a letter to Mr Adams, a school counsellor at Farrer, and Mr Adams’ notes which recorded his counselling sessions with the plaintiff, were in conflict with his evidence both as to when the mistreatment commenced and its impact on him. The defendant submitted that the letter gave a different impression altogether of the plaintiff’s emotional concerns and his inner conflict as an adolescent. In particular, so it was submitted, while the letter referred to being mistreated by his peers, the plaintiff’s primary and stated concern was to seek help for his obsessive washing behaviour which he did not appear to associate solely with his mistreatment at school there being other sources of emotional conflict in his life.

12 By contrast, Mr McIlwaine of Senior Counsel commended the plaintiff to me as a witness whose honesty and reliability I should accept, and that the weight of any contradictory evidence was outweighed by the force and sincerity of his evidence concerning his high school experiences and the general consistency between his evidence and the documentary evidence tendered by both parties. In addition, he submitted that there is no proper or principled basis upon which to make an adverse credit finding in any event since the defendant had not complied with the rule in Browne v Dunn (1893) 6 R 67 when cross-examining the plaintiff about his high school experiences, a rule of fairness which has its current articulation in Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 as applied in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.

Challenge to the plaintiff’s evidence concerning the “trigger events” in the post-Farrer years

13 The application of these principles also arose in the context of a challenge to the plaintiff’s evidence concerning a particular event that occurred some time after Christmas 2001, after he commenced employment as a teacher with The Scots College at their Glengarry campus in Kangaroo Valley in July of that year. This event (referred to in the proceedings as the “Myall incident”) and what is said to be a related event in June 2002 (referred to in the proceedings as “the boy suffering the panic attack incident”) are relied upon by the plaintiff as triggering a resurgence or recurrence of symptoms of the psychiatric illnesses he suffered from as an adolescent. It was common ground that his adolescent illnesses had become asymptomatic, and remained so for a period of at least five years after he left high school. The experts were invited to offer their opinion as to the likelihood of a relapse or recurrence being triggered by either of these events (or the events in combination) after an extended period in remission.

14 The plaintiff’s case was that both of these events excited or revived a memory of the trauma he had suffered as an adolescent and, in this way they forged a causal link between the defendant’s admitted negligence in the Farrer years and the development of his psychiatric illness as an adult in the post-Farrer years such as to render the defendant liable both for the damages associated with the injury that re-presented at that time (an injury which I am also invited to find materially contributed to him being dismissed from The Scots College in July 2005), and for the additional disabling features of his illness that have emerged since that time significantly diminishing his earning capacity into the foreseeable future.

15 These so-called “trigger events” and the plaintiff’s reaction to them in terms of immediacy and intensity were described in detail by him in the course of conferring with each of the experts, albeit not consistently. In addition, the varying accounts of these events were inconsistent, in some important respects, with the plaintiff’s evidence in the proceedings. The defendant submitted that on this basis alone I should reject the plaintiff’s evidence as unreliable, and that I would also be left in doubt as to the reliability of his subjective interpretation of the connection between these events and his progressively unstable psychiatric state dating from that time.

16 Whether the plaintiff can rely upon the application of the principles to which I have referred to deflect the attack on his credit or whether, despite the inconsistency between his evidence about the so-called trigger events and other accounts he has given of those same incidents, he has otherwise discharged the evidential onus of persuading me on the probabilities to accept his evidence as an inherently truthful account of his progressively compromised psychiatric state from early 2002, has a bearing on his entitlement to recover damages for non-economic loss in this period and past and future economic loss. It is not, however, determinative of that entitlement for two reasons.

17 The plaintiff placed considerable reliance on Dr Diamond’s evidence in making out his case on causation. In Dr Diamond’s report of March 2007 he referred to the plaintiff’s account of the two trigger events and considered that their cumulative effect was sufficient to explain the fresh onset of symptoms of the same mood and anxiety disorders the plaintiff suffered from as an adolescent or a variant of them. In a report in December 2007, and for the first time, Dr Diamond expressed the view that his illness (both as an adolescent and as an adult) met the diagnostic criteria of a post-traumatic stress disorder given that the triggering events reflected past trauma. It was on the basis of this diagnosis that Dr Diamond was of the opinion that the injury the plaintiff suffered in the Farrer years materially contributed to a recurrence of his previously dormant psychiatric condition in the post-Farrer years, a condition from which he currently suffers although with less severity.

18 If I am not persuaded that the plaintiff has given truthful or accurate evidence in the proceedings concerning the so-called trigger events, then the weight of Dr Diamond’s opinion that the plaintiff’s experiences as an adolescent bear a direct and undifferentiated relationship with his current psychiatric condition will necessarily be reduced. On the other hand, even were I to accept the plaintiff’s evidence about his reaction to the events (and even were I persuaded that post-traumatic stress disorder is an available diagnosis in these circumstances despite the fact that it does not strictly meet the criteria in DSM-IV) I must nevertheless be satisfied on the probabilities that they were sufficient to trigger the recurrence of some, or all, of the psychiatric illnesses the plaintiff suffered from as an adolescent (a finding which it was agreed would forge the causal link and render the defendant liable in damages for economic loss) as distinct from the plaintiff’s presentation with symptoms of a psychiatric illness after a lengthy period of remission being more likely explained by his underlying personality profile and associated life stressors at that time (in which case the defendant is not liable in damages).

19 Aside from a fundamental disagreement with Dr Diamond as to the availability of a diagnosis of post-traumatic stress disorder, Dr Brown did not regard either of the events as sufficient to trigger a re-presentation or recurrence of any of the psychiatric illnesses the plaintiff suffered from as an adolescent. This was in part because of the different history she had been given by the plaintiff and partly because, even after being asked to accept the plaintiff’s evidence in the proceedings as an accurate account of what he experienced at the time, she did not regard these events as sufficient, in clinical terms, to trigger a revival or recurrence of the symptoms of the plaintiff’s adolescent illness. Dr Brown considered it more likely that the particular depressive and anxiety-based symptoms, which first presented in the course of the plaintiff’s employment as a teacher with The Scots College in 2001 and which developed into a diagnosed disorder in 2004 at a time when he remained in the employ of the College, were as a result of him ruminating over his past in an effort to attribute an explanation for other problems and conflict in his life at that time without the past being a stressor in a clinical sense.

20 The second reason why the attack on the plaintiff’s credit is not determinative of his entitlement to recover damages in the post-Farrer years and quite apart from the disagreement between the experts about the clinical significance of the trigger events, their differing opinions as to the extent of the causal connection between the mistreatment the plaintiff was subjected to at high school and the likely aetiology of his psychiatric illness at that time crystallised into markedly divergent opinions as to appropriate diagnoses of the psychiatric illnesses and associated symptoms of illness the plaintiff has suffered from since then and the clinical explanation for their presentation. The different views of the forensic psychiatrists on this question are due largely to what the evidence reveals about the complex relationship between the psychiatric illnesses the plaintiff suffered as an adolescent, his psychiatric and psychological profile as an adult and his underlying personality.

21 Accordingly, although the attack of the plaintiff’s credit has a bearing on the question of causation in the post-Farrer years, resolving the dispute between the experts (assuming that is possible on the evidence) both as to an appropriate clinical interpretation of the so-called trigger events in 2001-2002 in the context of the plaintiff’s life experiences at that time and in the years that followed, together with coming to some resolve concerning their differing opinions as to an appropriate diagnosis of his current condition in the context of his psychiatric history as an adolescent and his psychological and personality profiles as an adult and the extent to which this has, or will be likely to, diminish his earning capacity into the future, will ultimately dictate whether the plaintiff has established, on the probabilities, the necessary causal connection between the defendant’s breach and his claim for economic loss.

Legal test of causation

22 The terms of s 5E of the Act impose on the plaintiff the onus of establishing the causal link between the defendant’s breach of duty and his psychiatric condition in the post-Farrer years.

23 Section 5D(1) of the Act provides that an enquiry into whether negligence caused particular harm comprises two elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation ), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

24 No submissions were directed to the application of the section. The defendant did refer me to Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 at 286 where Ipp JA confirmed his understanding that factual causation as provided for in s 5D(1)(a) is to be understood in accordance with established common law principles. In this case that involves an investigation into whether, as a matter of common sense and experience, and taking an appropriately pragmatic and robust approach to proof, I am persuaded that the probabilities favour a finding that the defendant’s admitted negligence in breaching its duty to ensure that the plaintiff was not mistreated as a school student caused or materially contributed to his psychiatric illness as an adult. As the authorities make plain it is not enough that I am satisfied the plaintiff’s condition as an adult was possibly caused by the defendant's breach of duty to him as an adolescent. I also accept that the mere fact that it is or may be impossible to exclude his illness as an adolescent as a factor in the development of his illness as an adult, or even were I to make a positive finding that his adolescent depression and anxiety added to the risk of his developing disorders of that kind at a later stage of his life, does not of itself allow for a finding of material contribution. In the absence of evidence of a credible competing cause, however, the authorities recognise that a material increase in the risk of injury from a defendant’s conduct may be sufficient to ground an inference that causation is made out assuming that the inference can be safely drawn after considering all the evidence that bears upon the question.

25 I have assumed, there being no submission to the contrary, that if factual causation is established it would not be inappropriate to extend the defendant's liability to the harm so caused.

26 After applying the relevant principles the defendant submitted that the plaintiff had not discharged the onus of establishing that the breach of its duty of care in the period 1991 to 1996 materially contributed either to his presentation with symptoms of a psychiatric disorder in 2002, or the subsequent diagnosis of a psychiatric illness or illnesses in 2004, or the conditions from which he currently suffers. The defendant submitted I would prefer the evidence of Dr Brown, a consultant and forensic psychiatrist, and that of Dr Roberts, a clinical psychologist, and that I would regard the plaintiff’s illness in the post-Farrer period as relevantly unrelated to its admitted breach such as to disentitle him to damages for past or future economic loss.

27 If on the other hand I am persuaded to accept the views of Dr Diamond and Mr Borenstein that the pattern of the plaintiff’s symptoms and their presentation are of sufficient consistency from late adolescence through to adulthood to link their aetiology to his mistreatment as an adolescent, then despite the very careful and considered analysis of Dr Brown and Dr Roberts, and even accepting their views as a possible explanation for the relatively late or delayed onset of his illness as an adult, the plaintiff will have discharged the onus of proving a causal connection entitling him to be assessed for damages for ongoing non-economic loss and economic loss consequent upon its impact on his earning capacity.

28 The defendant also submitted that even if the plaintiff has established its liability in damages in the post-Farrer period, it had discharged the evidential onus of establishing that by 2004 the plaintiff was suffering from other disabilities of a psychiatric or psychological origin for which it was not responsible and, when the causes and effects of the complex of disabling illnesses from which the plaintiff suffers were “disentangled” from the harm for which it was relevantly responsible, the quantum of any damages award for economic loss should be significantly reduced in accordance with the application of the principle in Watts v Rake (1960) 108 CLR 158 at 160 (Dixon CJ) and Purkess v Crittenden (1965) 114 CLR 164 at 168 as reviewed by Basten J in State of New South Wales v Burton [2006] NSWCA 12 at [67] to [80].

29 Such was the extent of disagreement in this case, even were I to be satisfied that the defendant’s negligence materially contributed to the plaintiff’s current state of ill health (with or without some disentangling), and that his illness presented symptomatically in 2002 and diagnostically in 2004 such as to entitle him to an award of damages for the diminution in his earning capacity since that time, the parties disagreed as to the extent of the impairment to his earning capacity. The defendant submitted that I would not be impressed by the plaintiff’s evidence as to his current incapacity for work and that I would be satisfied, having regard to video surveillance evidence and his recent work history that, as with other aspects of his evidence, he had deliberately exaggerated his inability to cope within a workplace environment and to socialise and integrate within normal societal bounds.

The plaintiff's family history and early childhood

30 The plaintiff was born in Sydney. At the time of the hearing he was 30 years of age. He is the youngest of three children with twin brothers three years his senior. He described his family life as a normal settled family life and his parents as sociable outgoing people with an active interest in politics.

31 It was not in dispute that the plaintiff suffered from asthma as a young child with regular admissions to the Children's Hospital in Sydney. This prompted his parents to move the family to Tamworth when he was in first class at Newington College at Stanmore. He resumed primary school at Tamworth Public School. He said he made the adjustment from an all boys school to a coeducational school at Tamworth without any difficulty. His primary school records confirm that he made sound progress through primary school achieving consistently good marks academically and attracting favourable comments from his class teachers. He was described as a quiet and courteous student who thrived on responsibility. He was observed to mix well with his peers. Sometimes he had to be encouraged to participate in classroom discussion and to complete set tasks but otherwise he exhibited a quiet and consistent approach to his school work.

The plaintiff’s health as a child and adolescent

32 The plaintiff was admitted to hospital in Tamworth less frequently than when he was living in Sydney but remained under medical care both for his asthma and slow growth. He was reviewed by a specialist paediatrician on a regular basis until 1995 when he was 16 years of age. The extent to which the regularity of his attendance upon doctors over many years contributed to the development of anxiety symptoms in his early adolescence was in issue in the proceedings, as was the related question whether his small stature and delayed puberty also contributed to the development of anxiety symptoms at this time.

The plaintiff’s evidence of his experiences at Farrer.

33 Farrer is located on a rural property about 10 kilometres outside Tamworth. Between 1991 and 1996 it was an all boys school with a student body comprising 550 pupils. Although the school has an established reputation for academic achievement, emphasis is also placed on outdoor and sporting activities. Some additional cultural and artistic activities are catered for including debating and music.

34 The plaintiff’s twin brothers were well integrated into the school as day boys when the plaintiff entered high school. They were also on friendly terms with the boarders. Apparently the distinction between boarders and day boys was an important part of the culture of the school, with the boarders dominating by force of numbers.

Year 7 – The plaintiff’s first year at high school - 1991

35 The plaintiff gave evidence of being introduced to a system of discipline that operated at Farrer known as the SACK system soon after arriving at high school. There was no evidence as to the meaning of the acronym but there was no challenge to the way it operated, and was permitted to operate within the school, with the approval of the school administration. The SACK system operated on the basis of a strict hierarchy requiring younger students to obey a direction or request from an older student at the risk of punishment for disobedience. In addition, the SACK system gave Year 12 students authority over the entire student body and gave Year 12 students the right to inflict punishment in the event of disobedience. There were three particular forms of punishment. These were described by the plaintiff as “the nicks” where a student was hit on the hand with a ruler, “being broomed” where a student would be required to bend over and be hit with a broom, and “gnome duty” which required a student to stand at the entrance to the Year 12 dormitory in the position of a guard holding a broom and a rubbish bin lid.

36 The plaintiff gave evidence that during the second term of his first year at Farrer he was given the affirmative side in a class debate on the question whether the SACK system should be abolished. He associated the position he took in that debate with being singled out thereafter by some Year 7 boys and by two boys in Year 8 who started calling him names. He was called “sterile”, “bald”, a “stezbag” (a reference to him being prepubescent), a “dickhead” and a “fuckwit”. He was also called a “midget”. He said that at this time he also became the subject of physical aggression. He was tripped over in the corridors, flicked on the back of the ears, pushed into other boys or shoved into walls. He said he had “spitballs” shot at him in class. (A “spitball” is chewed paper that is blown through a tube.) He said some boys in Year 10 also started calling him names. Despite the fact that he reported the aggression and the insults to his Year 7 master on multiple occasions, and that he was upset and in tears when making the complaint, the name-calling and physical intimidation continued on a daily basis or at least every other day.

37 He said the name-calling initially caused him discomfort but then it became very draining causing him to feel unhappy most of the time and that the physical abuse made him feel insecure and unsafe. He was watchful of others around him and tried to avoid places where he might be assaulted. He said he was nervous and apprehensive about going to school and that he would go straight from the bus to the reading room each morning, waiting there until roll call in order to avoid boys in the playground throwing things at him, calling him names, or pushing into him. He said he had no friends and felt completely isolated. The boys he was in primary school with had left by the second term because of the lack of attention given to academic pursuits. He considered that he was better academically than the rest of his peers.

38 He gave evidence that during second term he was physically assaulted on the bus on the way home when a student pulled a hockey stick between his legs from behind causing pain in the genital area. He said that his assailant and others around him laughed at him and that he was upset and felt humiliated. He said he reported the assault to his year master but, so far as he knew, no boys were spoken to or disciplined. He said his twin brothers were in Year 10 when he was in Year 7 and that they travelled with him on the bus to and from school, including occasions when he was assaulted, but they did nothing to intervene on his behalf. He said in cross-examination that despite the fact that he believed most people within the school were aware of the fact that he was targeted for abuse he did not speak to his brothers about what was happening to him and neither did his brothers speak to him about it. He said there was only one occasion before his brothers graduated in 1993 that they made any attempt to defend him or to interfere on his behalf. This evidence is in direct conflict with the history he gave to Dr Diamond in 2004 when he claimed the assault with the hockey stick occurred because his brothers were not on the bus that day and that they generally intervened when “they saw things”. He gave a not dissimilar account to Dr Roberts. He said that he did not tell his parents about what was happening to him. He said by the end of the second term of his first year at Farrer he hated school and did not want to return after the school holidays. He said he travelled to Thredbo with his parents during term break which was a source of enjoyment for him.

39 He said at the commencement of term three he had a disagreement with one of the students in his year who threatened to inform on him to the Year 12 prefect designated as the prefect responsible for Year 7 boys. The plaintiff understood this would result in him being sent to the prefect to be “broomed”. He said after the disagreement with the Year 7 boy he went home and did not return to school for approximately eight weeks because he developed stomach cramps and was hospitalised.

The plaintiff’s hospitalisation in 1991

40 His hospitalisation at this time was recorded in both the hospital records and the records of his treating doctors tendered in evidence. The defendant relied on this material with a view to persuading me that the plaintiff's evidence, which associated his hospitalisation solely with the mistreatment he was receiving at school, should be rejected and that what was ultimately diagnosed as a somatic condition by his treating doctors was primarily as a result of other causes, including conflict at home. Furthermore, since Dr Diamond's and Mr Borenstein’s views linking the plaintiff’s unexplained abdominal pains at this time to the development of an anxiety state also depended upon the plaintiff’s evidence as to what he was experiencing at school in his first year being accurate and reliable, their opinions should also be read with some qualification. The defendant’s case is that the more probable, or at least an equally probable explanation for the plaintiff’s medical presentation in 1991 sources from a combination of physical and psychological factors, either wholly unrelated to his experiences at school or, to the extent that he was experiencing difficulties in that context, they were not such as to have materially contributed to his complaint of abdominal pains. The defendant also relied on the plaintiff's written account of his experiences at this time in the letter to the school counsellor in 1994 as a source of evidence contradicting his evidence in the proceedings on the issue.

41 The records bearing on the plaintiff's hospitalisation in August 1991 need to be viewed in the context of the care he was receiving from Dr Gardiner and Dr Moore, consultant paediatricians practicing from a medical centre in Tamworth.

42 In November 1990, the plaintiff's final year of primary school, Dr Gardiner observed that earlier that year the plaintiff had been hospitalised with a persistent repetitive cough which proved to be largely psychosomatic.

43 In February 1991 the plaintiff was reviewed by Dr Moore for his asthma and slow growth. Dr Moore observed that whilst there were physical indications that he was about to enter puberty (by reference to the size of his testes) he had a subnormal growth rate dating from the age of 6 years and 8 months. Dr Moore arranged for a bone age X-ray which confirmed that the plaintiff had a bone age of 10 years and a chronological age of 12 years. He arranged for the plaintiff to return for re-measuring and review in three months time.

44 On 6 May 1991 Dr Moore observed that the plaintiff continued to grow slowly but that it was expected that his growth rate would improve in the next 6 to 12 months commensurate with the onset of puberty. Again his testes were measured. Dr Moore also reported that:

“David has been doing very well academically at school, coming top of his class. He says that he has not had any hassles as a result of his stature.” (emphasis added)

45 I note that this appears to be in direct conflict with the plaintiff's evidence that he was called “a midget” and was teased for being prepubescent in the second term of his first year at high school.

46 On 12 August 1991, immediately prior to his hospitalisation, the plaintiff again presented to Dr Moore for review of his slow growth and asthma. Dr Moore noted that the plaintiff had been unwell in recent times as had other family members, and that he was suffering from an upper respiratory infection characterised by a prolonged non-productive cough. More recently he had come home from school unwell with “grabbing, non-pleuritic pains under his ribs” associated with his persistent cough.

47 On 26 August 1991 Dr Moore referred the plaintiff to Dr McKenzie for a surgical opinion as to a possible explanation for the pain. Dr McKenzie saw the plaintiff on 23 August and again on 26 August 1991 at which time he noted a one-week history of abdominal pain associated with being unwell with asthma for three to four weeks, that the pain was constant in nature with no radiation and no known precipitating or relieving factors. He was of the view that in the absence of any organic cause the pain would resolve spontaneously. He also noted that the plaintiff's mother was concerned about his small stature.

48 On 28 August 1991 the plaintiff was admitted to Tamworth Base Hospital by Dr Moore for investigation. He was discharged on 4 September 1991. The discharge summary noted that the plaintiff was a Year 7 student at Farrer with "some difficulty with personal interactions noted". There is nothing in the hospital notes to identify the source of this information or any elaboration as to the nature of the difficulty or whether it was in the context of home or school.

49 On 13 September 1991, eight days after his discharge from hospital, the plaintiff was reviewed by Dr Donnelly in Dr Moore's absence. He noted as follows:

“…David struck me as a boy who was rather immature in his emotional development for his chronological age with a rather soft, gentle personality, who has been experiencing recurrent episodes of epigastric pain for the last 6 weeks or so.



Initially he may have had some organic process eg viral upset, and as well, at the time, his asthma was uncontrolled and he needed a course of systemic steroids and I think he had a course of erythromycin. Around this time, as you know, the somatic symptoms were significant and there was a lot of secondary gain (sic) provided by his parents, in particular his mother and at the time there had been a lot of conflict at school .

(The plaintiff's) hospitalisation consisted of observation during which time we felt that he exhibited illness behaviour in that on approaching him he would double up in abdominal pain, yet when he felt he was not being observed there was no apparent "body language" which made one think that he was in pain...” (emphasis added)

50 Since physical examination, routine observations, endoscopy and ultrasonography excluded any organic cause, and after noting that at the time of the onset of symptoms of abdominal pain there had been conflict at home and at school, Dr Donnelly concluded that the symptoms were secondary to that unresolved conflict. There was, however, no description of the nature of the conflict in either setting or whether the plaintiff was the source of the information concerning it. Dr Donnelly also noted that the plaintiff's functioning had improved dramatically since his discharge from hospital, that he had attended school every day despite having many sick bay attendances, and that his self-esteem was improving. He noted that the plaintiff proudly showed him his handiwork. Dr Donnelly proposed a liaison with the Anglican Counselling Service and reported that he had a number of sessions with the plaintiff's parents discussing with them issues of emotional conflict, anxiety states and somatic symptoms.

51 The plaintiff gave evidence that he returned to school in the second last week of the third term. He said he did so reluctantly, fearing what would happen to him on his return, in particular that he would be sent to the prefect or “broomed” or verbally abused. In the result he was not sent to the prefect or physically assaulted although he said he was pushed around and the name-calling resumed. He said that this time he was also called a “loser” and “disloyal”. He said he interpreted the allegation of disloyalty to be associated with the fact that he did not play rugby but preferred to engage in debating and public speaking contrary to the prevailing ethos of the school.

52 During the last term of Year 7 the plaintiff gave evidence that the name-calling and physical abuse continued as did his feelings of nervousness, discomfort and anxiety. He said that by this stage he was excluded from eating with other students in his year and that any attempts to join with them were rebuffed with students swearing at him, throwing things at him, and telling him to leave. He said that he complained to his term master but again nothing happened to change the behaviour of the other boys.

53 He said he did not tell his parents what was happening as he did not want to be perceived as weak. There was no evidence as to whether the plaintiff’s parents discussed with him the issues raised with them by Dr Donnelly on his discharge from hospital. Neither of his parents gave evidence in the proceedings.

The Anglican Counselling Service

54 The plaintiff attended the service for eight counselling sessions between 24 September and 25 November 1991. The plaintiff gave no evidence as to his memory of, or reaction to, the counselling in which he actively participated. The counsellor’s notes described the presenting problem as:

“Abdominal pain, asthma - stress and fear when settling at night. Investigations by Dr Moore and McKenzie (gastroscopy) reveal no clinical signs.”

55 The counselling sessions involved observed play. The counsellor’s notes recorded the following:

“David’s “play” featured people with guns in fighting mode (or hunting mode). He always put himself and his best friend in the action, he as the conquering hero and his friend as ‘different’ from the army men who killed each other silently and expertly. David’s view of himself is “the quiet achiever” esp at school where he aims high (with a lot of parental help and support(!)) “Shooting is a way of being angry” (esp with his twin brothers who wipe off his computer programmes). Worked with clay modelling board riders and sharks and expressed anger.”

56 The plaintiff was reviewed again by Dr Moore on 14 November 1991, midway through the last term of Year 7 and during the currency of the counselling sessions, for what doctor noted as his asthma, abdominal pains, slow growth and emotional difficulties. He noted that the plaintiff's abdominal pains continued and appeared worse when he ran around although, as a rule, it was not as bad as it was previously. (It would appear that this was on the basis of information supplied by the plaintiff.) Dr Moore also noted that the plaintiff had not missed any school and that he seemed able to express his feelings in the environment offered by the Anglican Counselling Service better than he was able to in doctors’ rooms or in the hospital. It would appear that this was also on the basis of information the plaintiff proffered. Importantly, there is no mention in the counselling notes or in Dr Moore’s notes of the plaintiff complaining of the intense and sustained mistreatment he was subjected to on a daily basis or being rejected by his peers. The plaintiff's mother was concerned to pursue her son’s slow growth and asked for a referral to a growth specialist in Sydney.

57 In summary, the plaintiff gave evidence that at the end of Year 7 he regarded the entire first year at Farrer as a bad experience because of how he was treated on a daily basis and because of his isolation. I accept that the plaintiff was treated by his peers generally in the way that he described. I am not persuaded, however, that the bullying and name-calling was as persistent as he claimed since his evidence is not easily reconciled with his presentation to Dr Donnelly, his own account to Dr Moore that he was not “hassled” because of his height ,or the observations of the counsellors that the primary source of his anger was directed at his twin brothers. I also accept that he was relatively isolated which caused him unhappiness and upset but again I am not persuaded that this was solely the result of his experiences at school, as distinct from it being a reflection of his place within the family and the longstanding difficulties in his relationship with his mother, although doubtless his experiences at school contributed to his isolation.

58 It is significant in terms of his behaviour in later years that he was observed by nursing staff and his mother to wash his hands with some undue regularity and compulsion during the course of his hospitalisation in 1991. Although I am persuaded that his somatic condition can be sourced in part to conflict at school, and that this condition is an early indication of an anxiety state which may in turn have been a precursor to his adolescent and then adult psychological profile, I am not satisfied on the probabilities that his symptomatic obsessive washing at this time which was both isolated and transient, is susceptible to the same aetiological link. I am constrained to disregard the plaintiff’s claim in cross-examination that he regarded the school books with him in hospital as unclean thus causing him to wash as unreliable given its emergence for the first time in cross-examination.

Year 8 - 1992

59 The plaintiff spent the Christmas holidays with his family at their holiday home in Mollymook. He gave evidence that this was enjoyable but that he did not wish to go back to Farrer in 1992 to commence Year 8 because he was fearful that the abuse he had suffered the previous year would resume, as proved to be the case. On his return to school his head was smashed against the window of the bus on a number of occasions and complaints to the teaching staff did not result in any change in the behaviour of the students who were mistreating him. He said that in Year 8 he spent recess and lunch on his own behind the library.

60 The plaintiff was next reviewed in May 1992 by Dr Moore who noted that the plaintiff appeared to be succeeding academically, reporting recent successes in public speaking and debating. This is borne out by his school reports. The doctor also noted that the issue of abdominal pain was not brought into the conversation at all until he asked whether there had been any recurrence of pain given that there had been no review since November of the previous year. The plaintiff reported only one episode in January of 1992 and none since. In my view it is difficult to align this one isolated episode with any persistent somatic condition or any negative experience at school given that in January he was on school holidays.

61 In early June 1992 the plaintiff was hospitalised a second time, this time for 24 hours, as a result of a severe asthma attack. At that time Dr Moore noted that the plaintiff had been unwell for a week with a sore throat and increased coughing. He also complained of bilateral chest pains which would come and go suddenly making it difficult for him to breathe. He was prescribed cortisone to which he had an adverse reaction causing his face to swell to an extent that rendered him unsightly.

62 The plaintiff gave evidence that on his return to school this attracted a rumour that he had AIDS and that students would puff up their cheeks and mock him, pretending to pop his face with a pin and warning others not to touch him lest he infect them. He said he was pushed, tripped and hit. He said he complained to his year master but again there was no improvement in the treatment he was receiving from his peers. He said that their treatment of him made him feel dirty, isolated and rejected. He said his reaction to the cortisone, and the ridicule and rejection that it entailed, was coincident with washing himself at the end of the school day with disinfectant where he had been touched or pushed by other students. He said that he felt that using the disinfectant would rid him of his contact with them.

63 When the plaintiff was reviewed by Dr Moore on 10 June 1992 he continued to complain of chest pains and the onset of abdominal pain, which was described by him as "different from last year" in that the pain was sharp and jabbing, lasting seconds to minutes without any obvious relationship to other environmental factors. He also complained of occasional hand shaking and thought he was passing urine more frequently. He made no reference to feelings of contamination or washing with disinfectant. Dr Moore was unable to explain the plaintiff's chest and abdominal pains but did not see either as "terribly disabling" and considered that they would most likely resolve with the cessation of steroids. I do not regard any of these complaints as necessarily indicative of anxiety in the same sense as the somatic condition he was hospitalised for in 1991.

64 The plaintiff was next reviewed by Dr Moore on 1 September 1992 for a number of listed problems namely asthma, short stature, slow growth and sore heels. Dr Moore noted that the asthma had been relatively well controlled, and although his facial puffiness had resolved the plaintiff and his mother considered there to be some “truncal obesity” as a result of his steroid therapy. An examination of his genitals was undertaken with measurement of his testes and his penile length. In what Dr Moore described as a private conversation, the plaintiff was said to be in favour of a course of injectable testosterone to promote his growth despite being advised to expect some adverse side effects and that he could expect his own testosterone to takeover in the next 12 months. Dr Moore provided a prescription and advised that he would repeat a bone age X-ray early the following year after the plaintiff had completed the prescribed course of injections. A later report confirmed that four injections were administered. The plaintiff’s complaint of sore heels, which was noted to be of recent onset, was treated with rest with a view to allowing the injury to settle down before he resumed playing hockey.

65 His academic results were consistently high throughout the year with his year master reporting that “David is a fine student who deserves these results”. It was also noted that he was polite and hard working but in some subjects his results would improve with greater classroom participation. Whether this reflected his social isolation or his quiet temperament and demeanour is not clear.

66 Despite his level of functioning, I accept that his pain and humiliation at being treated as if he were suffering from AIDS was real. I am also persuaded that it was in this context that he commenced to wash with disinfectant but at this stage only on an occasional basis as detailed in the letter to the counsellor written the following year.

67 At the end of his second year at high school he had an enjoyable family holiday but again he said he resisted returning to Farrer the following year for fear that the mistreatment would continue. It would appear that he did not make his parents aware of the reason for his resistance although he did ask to be moved to another school.

Year 9 - 1993

68 The plaintiff gave evidence that the name-calling continued unabated throughout the first term of Year 9. He said that in physical education classes he was targeted when playing team sports with students crash tackling him to try and injure him and then laughing it off as if it were part of the game. He said that he complained to the physical education teacher who offered the solution that he should not play team sports but use the time to run around the oval. He said that running around the playing fields on his own made him feel as if everyone was looking at him and he felt even more isolated, unhappy and worthless. I note that in his half yearly report for the subject entitled “Personal Development, Health and Physical Education” the plaintiff was graded with “B” for conduct and achievement and “A” for effort. This teacher commented:

“Very hard working and likes perfection. Keep it up”.

The end of year report in the same subject recorded “B” for achievement and effort and “A” for conduct with the class teacher noting:

“An attentive and industrious student”.

69 There is no obvious alignment between the plaintiff’s evidence of his experience in physical education classes and the assessment of his achievement by the classroom teacher. For this reason while I accept that he did not feel included by his peers in team sports, and that his height may not have qualified him for inclusion in some, I do not accept that he was consistently singled out in the way he described.

70 Dr Moore reviewed the plaintiff again midway through the first term of Year 9 where it was noted after an examination of his genitals that he was “in charge of his own pubertal development” such that there was no need for further regular paediatric supervision. A recent bone age X-ray revealed a bone age of 12 years 6 months and a chronological age of 14 years and 5 months, giving the plaintiff an estimated mature height of 176.7 centimetres with rapid growth noted over the previous six months. The plaintiff‘s continuing complaint of heel pain had improved with X-rays showing no abnormality. The difficulty the plaintiff complained of when swallowing was thought to be likely related to pubertal changes with his voice. He was not reviewed again until March 1994.

71 The plaintiff gave evidence that in Year 9 students started throwing rocks and gravel at him in the assembly line while he was waiting for inspection on a weekly basis and that despite the fact that teachers were present they did nothing to stop it. I am not persuaded, on the probabilities, that this occurred on a continual basis with tacit teacher approval although I accept it may well have occurred at assembly without their knowledge from time to time. The plaintiff also said that despite the fact that the effects of the cortisone had subsided, the taunts and teasing about him having AIDS continued and he continued to spend recess and lunchtime alone. When he complained to house masters and year masters they would listen to his complaints, but they did not suggest any strategy either to deflect the mistreatment or for him to deal with it in some way and, so far as he was aware, they did nothing to intervene to prevent it.

72 He said in evidence that half way through Year 9 he started to cut his arms and his legs with a razor. He said he did not know why. He said he continued to feel dirty after contact with other students and washed excessively and routinely after school using disinfectant in the process. He said over the previous 12 months, that is since midway through 1992 in Year 8, he had been using household grade disinfectant but by term three in Year 9 he was using hospital grade disinfectant. There is no evidence that washing with hospital grade disinfectant came to the attention of his mother until midway through 1994. It is not easy to understand how that could be so if the plaintiff’s evidence of it being an established compulsion over the preceding eighteen months is to be accepted. I note his mother did not give evidence. Moreover, in his letter to the counsellor he did not acknowledge using hospital grade detergent until 1994. I regard his contemporaneous account as the more reliable. I accept however that the compulsion to wash was an established ritual by Year 9 but not such as to interfere with his daily functioning.

73 He said that by the end of 1993 he did not want to be around the school and did not want to go to school. He had no friends either in the year above him or in his own year. He said he had two or three boys in Year 7 who he spent time with both because they shared similar interests with him and because they were also receiving some of the mistreatment he had received as a younger boy. He said he felt isolated and powerless to change his circumstances but by this stage he regarded it as pointless to complain to the school authorities since his sustained complaints over previous years had not brought about any change.

74 His school reports at mid year and end of year for Year 9 continue to reflect a high standard of academic achievement, save for mathematics where it is noted that his results suffer from working too slowly in exam situations and a need to do more self-motivated revision and study. His behaviour does not attract adverse comment. He is described by most teachers as quiet, conscientious, polite and hard working with his English teacher noting that he must be willing to listen to others if he is to succeed.

Year 10 – 1994

75 So far as his school work was concerned throughout Years 7, 8 and 9 the plaintiff gave evidence that he was able to “coast along and get reasonable marks” despite the fact that his focus was distracted by the behaviour of other students. This is not reflected in his school reports. Indeed, in large measure, they contradict his self-assessment. He said that during Year 10 his school marks plummeted, particularly in science and he was failing in maths. He said that it was in science and maths classes that students would interrupt him by either copying his work or throwing things at him. He said that this was also happening in other classes. This is also not borne out by his school reports.

76 In so far as his marks in science are concerned, and while it is true his first semester’s results across the fields of achievement, effort and conduct were graded as “C”, the class teacher observed:

“His problem-solving mark will improve with practice. All set work must be submitted”.

This would seem to suggest a lack of application both in class and out of class. In the second semester his results improved to “A’s” and a “B” with the class teacher noting:

“David has dramatically improved his efforts and has achieved an excellent result”.

77 In mathematics his first semester results were again “A’s” and a “B” with consistent grades in second semester. His class teacher observed:

“David has worked consistently during this year and should be successful in Year 11”.

78 He was last reviewed by Dr Moore on 10 March 1994. Dr Moore noted that the plaintiff had been stable over the previous 12 months with no complaints of heel pain, difficulty swallowing or abdominal pain and no alteration to the regular asthma medications. A genital examination was undertaken, together with height and weight measurements, all of which proved unremarkable in the context of his growth and development over the previous three years. His general health was described as good and Dr Moore noted that the plaintiff had recently won a Japanese prize. After speaking with the plaintiff alone Dr Moore observed that he presented as a “much more mature young man than on previous occasions” and that he was angling for an overseas exchange to Austria the following year. Dr Moore also reported the following:

"…He continues to have problems at Farrer, I gather he is hassled by other students because of his academic success and small size”.

79 He said in evidence he was still feeling dirty and routinely washing with disinfectant and self-mutilating. Clearly enough, although he reported some difficulties at school to Dr Moore, he did not detail the extent of the conflict and made no reference to the other acute avoidant behaviours he described in his evidence.

80 The plaintiff said that in the second term of Year 10 he sat for a scholarship for the Kings School in Sydney because he wanted to change schools. He said the references to sterility, baldness and his prepubescent condition had dropped off the catalogue of insults by this time but new insults were added. It was in Year 10 that he was required to write an essay about Adolf Hitler where he received a mark of 20 out of 20. He said that mark was publicly announced in the class and immediately thereafter students started calling him “Hitler” and a “Nazi” and greeting him with the Nazi salute. It was also said of him that he was “a Jew hater” and a “neo-Nazi”. He said he was also being called a “paedophile” on a daily basis at this stage. He said he complained to the teaching staff about being vilified in this way but no member of the staff spoke to the boys who were responsible because the name-calling continued.

81 Midway through the 1994 school year a document entitled “The Fair Discipline Code”, in which bullying was described as unacceptable behaviour, was distributed to the students at assembly. The plaintiff said he dismissed the document as just words on paper since his personal experience was that the staff had done nothing over an extended period of years to address the fact that he was being systematically bullied despite his repeated complaints. It is ironical that the school should endorse a publication acknowledging the inappropriateness of bullying in 1994 (no doubt aware of the attendant and foreseeable risk to a student’s physical and mental health that such conduct entails) and for the defendant in this case to accept liability for that very risk.

82 In the second week of term three another incident occurred consequent upon the plaintiff being called a “poof” and a “faggot”. He retaliated by swearing at two of the Year 12 boys. He was then sent to the common room at recess to see the senior prefect. He refused to do this and ran away. He said he kept running around the oval to try and get away but was chased down by eight or nine Year 12 boys and dragged back to the Year 12 common room. He said he was surrounded by about twenty Year 12 boys who yelled at him and swore at him calling him a “poof” and a “faggot”, a “smartarse” and a “liar”. He said he felt totally vulnerable and powerless. He felt as if they were going to hit him and if this was going to happen he did not know when it was going to end. He said he reported the incident and that a meeting was convened in the principal’s office. He gave his account of what had occurred as did the other boys. He says that all he remembers from that meeting is that he was informed that in the view of the staff there was fault on both sides and that he should not be disrespectful to the Year 12 students. He said that he complained to his father and that his father made a complaint to the school but that the mistreatment at the hands of the senior boys continued. They continued to push into him, hit him, flick his ears and call him a “faggot” and “sterile”. He said that they mocked him with a squealing high voice.

83 At the end of the third term in Year 10 he went on a trip to Tasmania with his parents but did not want to leave the hotel throughout the trip because he felt unhappy and isolated and he was fearful of being hurt.

84 Towards the end of the year a Year 8 boy pushed his school bag on top of the plaintiff on the school bus. The plaintiff retaliated and a physical fight broke out. This prompted him to write a letter which he gave to a member of staff on the understanding that it would be given to the principal. This in turn precipitated the involvement of the school counsellor, Mr Adams. The letter became the subject of detailed cross-examination. It was also considered by the experts for what it revealed about the plaintiff’s emotional and psychiatric health at this time for diagnostic purposes.

The letter to the counsellor

85 In order to put the cross-examination in context it is necessary to set the letter out in full. It reads as follows:

“It all started in Year 7 when I started at Farrer. I was one of the most popular boys in the year, I got along with almost everyone. But then I got sick with really bad stomach pains which no doctor could explain. I was off school for nearly a whole term and when I got back to school I was took (sic) sick still to do PE and all the sort of things that I did before. I then became a victim of the “Sac System” I was always being pushed around by older years. So I spoke out against the “Sac System” and nobody supported me. All my friends left me and I spent the rest of the year in fear of what they might do to me. I tried to convince my parents to let me leave, but I refused to go to any co-ed school so I was not allowed to leave.


During this time the wonderful doctors decided that I had a growing problem so they started doing all these tests on me. Which included touching me where I didn't want them to. I complained to my parents saying that I didn't care that I was small and I didn't want to see any doctors. Again they didn't listen.

At school the abuse that people gave me got worse. In year 8 I tried to make friends with some of the new year 7s but they weren't worth making friends with. I got sick again with Athsma (sic) and the wonderful doctor put me on some lovely medication that made my whole face puff up. Most days I would go home crying from either verbal abuse or being hit by the year 9s and people in my year. …. I was then basically forced into taking hormone injections for my growth. Firstly if I grew it would mean that I wouldn't have to see the doctor any more and that means he wouldn't have to touch me. Secondly I would almost have done anything to get rid of how my face looked and the doctor said that growing might get rid of how it looked. And thirdly the doctor said it would make me bigger and not as many people would pick on me.

It always seems like a good idea at the time. It was definitely rosy at the time. I had always wanted to sing Once In Royal David's City at the Christmas concert which has an audience of about 500 people. But the drugs made my voice break. The drugs managed to change my body but they did nothing to change my mind. I still think that I’m a year 7 boy. Every year I try my best to get friends in year 7 but they see all the older years putting me down and they don't want to be an outcast... This year I finally found somebody who would be the perfect friend. The only problem is that he is in year 7 and he is a border (sic). I pray every night to be changed back to who I was at 13 so I can be best friends with this year 7, but nothing ever happens.

All this abuse has led to one big problem. Ever since I was in hospital in year 7 I started to think that some normal things were sort of unclean. In year 8 It got a little worse, because now everything to do with school was unclean (only because of the people there). I finally found the wonders of Dettol. I only had to use this occasionally if I touched something really dirty (such as someone I hated). Soon I started to use more and more of the disinfectant during year 9. I had to wash myself every night with it. About half way through year 10 household grade cleaners were not effective any more and I got on to hospital grade chemicals like Domestos. ... The other day on the bus an idiot in year 8 was behind me on the bus and he put this scummy hat on my head. It took me at least half an hour to get clean. In the process I managed to get 5 or 6 chemical burns. I'm sorry I had to write about this but I still can’t bring myself to talk about it. Please I need help , but if my parents found out about any of this they would immediately want me seen by some doctor again and that is the last thing that I want. My parents don't understand it any way . They just think I'm stupid and they have never tried to understand. They are usually too busy arguing with each other about money. Even my parents put me down for what I do.” (emphasis added)

86 In cross-examination the plaintiff said that he prepared the letter because he hoped that by writing it a teacher would be motivated to ask him to explain the reason for his distress and that this would give him the opportunity to detail the extent to which he was being bullied and abused so that it would stop. He insisted that the letter was intended only to highlight the fact of his mistreatment at school and the extent of it and nothing more. In cross-examination the plaintiff conceded that in the various meetings with Mr Adams that followed his receipt of the letter that he did not nominate any particular instances of mistreatment other than a reference to “some abuse and occasional stone throwing” which Mr Adams recorded in his notes.

87 He said that when he wrote the letter he had not planned to give it to anyone in particular. He confirmed that he prepared it on a computer but could not recall whether he prepared it in one sitting or over a period of time. He refused to accept the proposition that he was careful to express precisely and accurately the various matters he wanted to draw to the reader’s attention, or that he was concerned to record with precision the chronology in which various events occurred. He said his primary concern was to set out how the abuse and the emotional conflict that it gave rise to had affected him. He was unable to explain why he described in the first paragraph of the letter becoming a victim of the SACK system only after he was hospitalised with stomach pains and that it was only after being in hospital that the mistreatment started (as to which see the italicised references in the letter extracted above). Under cross-examination he said that when he was in hospital he had feelings of being unclean but that this was associated with his school books which were with him in the hospital. I have already indicated that I do not accept that evidence.

88 The plaintiff said the bold typed references to “it” and “needing help” in the last paragraph of the letter were referable to the abuse and the bullying, while the underlined references were referable to his obsessive washing and his reasons for behaving in this way. He said the references to “the wonderful doctors” and “lovely medicine” was intended as sarcasm. Although he was taken to the content of the letter in detail in cross-examination he repeatedly insisted that the letter was a request for help because he was being bullied and not intended to be interpreted in any other way. Contrary to his expectations that his complaint would put an end to his mistreatment, he felt that the reason for his distress was ignored by the counsellor and others and that it was deflected into diagnosing him with an illness he did not identify with.

89 The defendant submitted that I should read the letter to the counsellor as reliably and accurately appointing the time when the mistreatment commenced and to conclude that the plaintiff's hospitalisation in 1991 was unrelated to his experience in the school environment. While a strict reading of the letter supports that conclusion, given the contemporaneous records of his treating doctors, I am satisfied that conflict at school materially contributed to his presentation with a somatic condition for which he was hospitalised.

90 The letter to the counsellor was also important for other reasons since it is an account given by the plaintiff at a time well before litigation was contemplated. That said, I am mindful of the need to make appropriate allowance for the fact that it was written by an adolescent boy in a state of acute emotional distress and turmoil at his life circumstances as he perceived them and for that reason alone, it should not be read as a carefully measured and reasoned analysis of the source of his distress. Nevertheless, it does carry the force of self-analysis and self-perception, and as a cry for help speaking as it does of his isolation and despair resulting from what I am satisfied was sustained abuse over a number of years and his terror at realising he was harming himself in the process. Despite the plaintiff's evidence that the letter was only written to bring attention to the abuse and mistreatment at the hands of the students, on any fair reading of the letter the plaintiff is also calling for help for what he sees as the one big problem, namely obsessive washing with detergent to the extent that he suffered chemical burns. When he says:

“I'm sorry I had to write about this but I still can't bring myself to talk about it. Please I need help, but if my parents found out about any of this they would immediately want me seen by some doctor”,

he is, in my view, undoubtedly referring to the obsessional washing.

91 While it is understandable that despite writing the letter and delivering it to Mr Adams he did not wish to be seen as ill, particularly given his exposure to doctors and some remembered unpleasantness and embarrassment at being psychically examined, and also understandable that he was unable or unwilling to deal with the inevitable confrontation and involvement of his parents, it does not stand to the plaintiff’s credit that he persisted in his evidence that his call for help and support went unheeded. In fact, it is difficult to understand his evidence on this issue given the considered view of the experts that he suffered symptoms of obsessive-compulsive disorder at this time which, in the view of Dr Diamond, were of sufficient severity to justify a diagnosis.

The counsellor’s notes

92 Mr Adams first saw the plaintiff on 22 November 1994. His notes of that meeting, and the meetings that followed over the weeks until the end of term, were tendered in evidence. After considering the contents of the letter and after speaking with the plaintiff and consulting with another member of staff, Mr Adams thought that the plaintiff may have an obsessive-compulsive disorder. He emphasised the need for the plaintiff's parents to be alerted to the seriousness of the plaintiff’s condition and the need for them to be prepared to accept his condition as a psychiatric condition. The notes include the following:

“…How parents are informed is the vital task, because this boy’s trouble is primarily domestic and not educational.
DG said his “OCD (?)” has intensified over the term, especially the last 5 or 6 weeks. Why, he is not sure, but suspects that loneliness may have something to do with this”.

93 The plaintiff gave evidence that after meeting with Mr Adams he was advised to attend a specialist in Sydney and should take Prozac. The fact that the plaintiff was informed that there was treatment for his condition, including drug therapy and cognitive behavioural therapy, is reflected in Mr Adams’ notes. Mr Adams’ notes also record that the plaintiff was told that his parents needed to be informed so that that they could assist in providing the necessary treatment and, that in the meantime, Mr Adams would obtain some literature on the disorder with a view to enabling his parents to appreciate the need for the plaintiff to consult with an appropriate specialist. The notes also record Mr Adams’ intention to administer a depression scale test to assist in alerting the plaintiff’s parents to what he described as “their son’s present distress“ and the need to have a follow-up interview with the plaintiff and to consult further with the plaintiff’s year master, Mr McCormack.

94 On the 25 November 1994 (three days after first speaking with the plaintiff), Mr Adams had a further interview with him. On this occasion he administered the depression scale, a test developed by the Centre for Epidemiological Studies in the United States in the form of a self-report questionnaire where the subject is invited to circle the answer that best described their feelings over the previous week. The plaintiff scored in the severely depressed range. He was informed that the test was for two reasons, first to assess the extent of his depression and secondly to utilise the information revealed by the test as a way of bringing to the attention of his parents the psychological difficulties he was facing. Apparently the plaintiff agreed with the test being utilised for the first stated purpose but hesitated at its use for the second stated purpose. (He gave no reason for his hesitation). The plaintiff was advised to speak to Mr McCormack and was told that he (the plaintiff) had control over what was to happen next.

95 At this meeting Mr Adams also discussed with the plaintiff the fight he had on the bus with the Year 8 boy. In this context Mr. Adams records that the plaintiff admitted he was the “victim of verbal abuse and occasional stone throwing where he was sometimes hit by a stone”. Given the comprehensive nature of Mr Adams’ notes, I am compelled to assume that the plaintiff did not dilate further upon either the extent of the verbal abuse and its persistence over the preceding three years or the regular physical abuse he described in his evidence. He was not invited to explain why he did not take the opportunity to detail the nature and extent of his mistreatment in his dealings with Mr Adams at this time. The fact that he did not is all the more difficult to understand given his stated determination that in writing and delivering the letter he wanted his help so that the bullying would stop.

96 On 6 December 1994 Mr Adams interviewed the plaintiff where the following was noted:

“(1) Case history of OCD victim read by DG.
(2) Article “OCD – the Hidden Disorder” - read next by DG.
(3) The issue of enlisting the parents’ cooperation via the article (of pnt 2) discussed.
(4) (the score on the depression scale noted)
(5) DG agreed to his parents being informed of his condition on the following terms:
(a) that it be after this coming weekend
(b) that Princ. and SC be involved
(c ) that both his parents be involved
(d) that he himself NOT be present”.

97 The plaintiff's terms and conditions were communicated to the principal with a view to convening a meeting with his parents. On 13 December 1994 the plaintiff's parents were informed of the probable diagnosis of obsessive-compulsive disorder. They were also provided with information with a view to them enlisting assistance from the plaintiff's general practitioner.

98 Documents tendered by the defendant revealed that in December 1994, the plaintiff’s mother consulted with Dr Holford, a general practitioner with the Barton Lane Medical Practice in Tamworth, and sought advice as to how to deal with what she understood was her son’s obsessive-compulsive disorder. The doctor’s notes record that she attended without the plaintiff because he refused to attend. The plaintiff’s mother provided a written summary of the plaintiff's medical history, including the regular reviews conducted by Dr Moore for his asthma and slow growth. She also reported that when the plaintiff was in Tamworth Hospital for the investigation of his abdominal pains in 1991 she noticed that he kept getting out of bed to wash his hands, and that the hand washing continued (although she does not indicate that it was continuous over the intervening period). She did report however that the plaintiff used disinfectant and that over the preceding two school terms she was greeted by strong chlorine smells when she arrived home and that:

“(The plaintiff) has become paranoid about his towel and sheets being washed and insists that he remove them from the line himself. I noticed that he washes his hands before fetching the bedding…”.

99 The evidence does not give any insight into why the plaintiff’s bedding and sheets should be the subject of obsessive attention.

100 In his evidence the plaintiff also claimed that Mr Adams did not offer him any counselling but gave him a pamphlet on obsessive-compulsive disorder. He said that was the only assistance he received. He said that he understood that he was supposed to read the pamphlet. He said he had a follow-up meeting with Mr Adams after which he attended a doctor’s appointment which had been convened for him. He said he went to the doctor with his teacher. As will become clear, this was not until November 1995, the plaintiff having refused to attend the doctor with his mother, when his parents were first notified by the school of the problem. He said the doctor simply asked him about the washing behaviour but did not provide him with any counselling or treatment. He said that no counselling was provided to him after the doctor’s appointment and that no one provided him with any solutions or strategies for dealing with what he was experiencing at school at this time or at any other time.

101 The plaintiff also said in evidence that he rejected the suggestion from Mr Adams and others that his behaviour indicated that he was suffering from an obsessive-compulsive disorder, a position he maintained under cross-examination when he was asked about a note in the patient file maintained by Dr Campbell in 2001 after the plaintiff attended on him for the purposes of obtaining medical clearance for entry to the Army. Dr Campbell noted that the plaintiff suffered “mild obsessive-compulsive symptoms for 2-3 years in late high school”. Consistent with the plaintiff’s view that his washing behaviour was not symptomatic of any psychiatric disorder he did not disclose that he suffered from a condition of any psychiatric or psychological nature in his admission form. He did disclose that he suffered from childhood asthma.

237 I accept that evidence of this kind does not compel the conclusion that the plaintiff does not continue to suffer from depression and anxiety or that his agoraphobia has resolved. While it is true that he is outwardly composed and apparently in control of his environment, the video does not reveal what efforts he has made, if any, to monitor his subjective emotional state or to compensate in some way for the risks of anxiety overtaking him. That said, the generally agreed position of the experts who were invited to consider the evidence was that it demonstrated that the plaintiff had established an area of safety (or as Dr Diamond described it “a cocoon” or as Dr Roberts described it “a safe haven”) within which he could comfortably and productively work and that this was indicative of a moderation in the symptoms associated with his anxiety disorder at least during that particular working week and that the evidence gave no indication of an active depressive disorder at all.

238 In cross-examination Dr Diamond agreed that one of the ways in which agoraphobia is treated is to increase the size of the patient’s cocoon, and the number of cocoons, with a view to progressively desensitising the patient so as to enable them to deal with environments, beyond the confined areas in which they feel safe, without being overwhelmed by anxiety. Dr Diamond also emphasised that a treatment model of that kind while theoretically producing a linear rational process of improvement is often different in practice with regression a common problem. In addition, specific desensitisation to one activity does not always generalise to other activities, even across seemingly similar environments. Notably, when Dr Diamond gave that evidence he had not been made aware of the plaintiff’s work at the campus at Jindabyne.

239 In Mr Borenstein’s view the capacity of a patient to progressively conceptualise a safe environment is in part dependent upon the individual’s natural intelligence and motivation and, together with a range of other variables, a person who is intelligent and motivated is likely to have both the confidence and ability to effect change in their behaviour in the therapeutic context. It was agreed that the plaintiff is in this category. I am satisfied that he is a good candidate for behavioural therapy directed to enhancing and building upon the considerable advances he has made on his own initiative to date.

240 In cross-examination it was also revealed that the plaintiff joined the Liberal Party in early 2006 and currently occupies the position of Vice Chairman of the Ulladulla branch - a commitment which at the time of the proceedings he intended to actively maintain. His duties as Vice Chairman include inter alia, chairing the meeting if the Chairman or President is not in attendance. He has also been involved in local politics with the Shoalhaven Council as a member of the Ulladulla and Districts Community Forum since 2006. This involved attending monthly meetings attended by 15 or 20 people and preparing press releases as directed by the Chairman of the Forum over a period of 18 months from 2006. He also had occasion to attend the Shoalhaven City Council meetings and has been involved in lobbying in relation to the Ulladulla Town Centre Development Control Plan. This is further positive evidence of the improvement in his level of social functioning.

241 I note the evidence in chief that he was first prescribed Zoloft to treat his depression in 2004 and that he currently takes 300mg daily but that he continues to feel depressed, even with medication maintained at these levels. He said:

“The depression comes and goes in levels of severity. If I have a conflict with or get frustrated by something, then the depression can set in for more than a week, and…I feel continuously depressed…

…It does subside, and I do have periods where I am able to go to work. However it's up and down. There is no logical pattern or any consistency to it, but it comes and goes.”

242 He said he was never free of a feeling of sadness and that bouts of depression occur on a weekly basis on average, lasting for anywhere from a day to two weeks, which was the duration of a recent bout of depression. I accept this evidence but note that the depression is now episodic rather than chronically disabling.

243 Together with his work at the cafe since October 2006, his work at Jindabyne within months of the proceedings commencing is also of considerable significance in the context of assessing the extent to which his future earning capacity is diminished by reason of psychiatric illness. It is of additional significance that the defendant was apparently unaware of his recent work history at the time the proceedings commenced, and that the experts called to give evidence were similarly unaware that he had successfully completed a term of full-time work since none had seen him since March 2007 when Dr Diamond and Mr Borenstein furnished their reports.

244 His teaching responsibilities at Jindabyne were specified as English, History, Computer Studies and Geography as well as on-snow duties including driving vehicles as required for transport of students to Thredbo Village. After completing a formal written application for the position in April 2008 he travelled to Sydney to be interviewed by senior administrators of the school (albeit with his mother), then travelled to Jindabyne from Mollymook alone to take up the position formally offered by letter of 27 June 2008. He returned to Mollymook at the end of the term, also on his own. He agreed that he was able to enter and join the campus environment which comprised 70 students and 8 teaching staff despite never having met any of them previously.

245 His written application for the position detailed his teaching experience and addressed his capacity to work as part of a teaching corps. It emphasised his experience with staff management, staff programming, training and coordinating outdoor activities. He nominated a strong interest in downhill skiing, and that he had skied on New South Wales, Victorian and New Zealand ski fields. He claimed a proven ability to provide leadership and work effectively with others in a wide variety of stressful situations. He informed the school that he was currently managing a family-owned restaurant on the south coast of New South Wales, which, due to the seasonal nature of the business, permitted him to take work during the winter term. In his accompanying curriculum vitae he nominated his role as team leader at the inaugural Youth Leadership Forum to promote leadership development in the South Coast community held at HMAS Creswell in October 2005. I note that this was within months of being dismissed from Glengarry. He did not advise those interviewing him of his psychiatric condition, and he did not volunteer that he was dismissed from Glengarry, or that his dismissal was the subject of industrial action.

246 The position involved him teaching at the SCEGGS campus which is three kilometres out of the Jindabyne township, and spending three afternoons a week and weekends at the Thredbo Ski Fields with the students. He said when he applied for the job he was attracted by the fact that the campus was out of town, that the appointment was for a short term and that it offered him the opportunity to push himself beyond his current restrictive living and working boundaries. He gave evidence that he did not travel into the Jindabyne township to visit the nightclubs or bars (although the evidence did show he visited shops and the supermarket in Jindabyne) but otherwise socialised with the staff on the campus and travelled to the ski fields on a regular basis. He was guarded in his evidence as to the extent to which he either accompanied the students on to the slopes or skied with other staff members in a manner which I found frankly unconvincing and likely designed to understate the extent to which he was able to deal with an uncontrolled environment.

247 He regarded the experience at Jindabyne as positive and that, given the opportunity, he would wish to repeat the work experience although he was concerned in cross-examination to emphasise that he would not be attracted to a teaching position in a rural location, even one proximate to a small town, expressing concerns that he could not control that environment. I also consider this as somewhat disingenuous given that he has made application (albeit unsuccessfully) since 2005 to join the Grains Board, the Snowy Mountain Tourism Board, the Agricultural Research and Development Corporation Board, which meet respectively in Orange, Sydney or Canberra despite the fact that he maintained that he could only attend those meetings if he were escorted, and if he couldn't get an escort he simply would not attend the meeting.

248 Each of the expert witnesses regarded the plaintiff’s initiative and capacity in undertaking the work at SCEGGS as impressive and an indication that his condition is neither as severe, disabling or acute as previously thought. In Dr Brown's view his proven capacity for work in a school environment disqualified him from a diagnosis of a panic disorder at all, despite the fact that he may retain mild panic symptoms, but which no longer interfere with his capacity to work or travel.

249 It is appropriate to note of course that the work at SCEGGS was on a contract basis, as distinct from a full-time permanent teaching position and that the plaintiff has yet to apply for work on extended terms. Importantly however, I do not understand from his evidence that he will not make an application of this kind at some time in the future. I also accept Dr Diamond’s evidence that chronic anxiety states by their nature flare up and settle depending on the stressors operating at any given time, and that a person who is a chronic sufferer from depression is also vulnerable to episodic lapses in their ability to cope with work and other social interactions. (I note and I accept that the plaintiff gave evidence in chief that he experienced sudden apprehension, nervousness, insecurity and the need to wash himself on his arrival in Sydney for the purpose of these proceedings.)

250 Nevertheless the evidence satisfies me that over the last 12 months at least there is an established trend or pattern of sustained improvement in the plaintiff's condition which has been achieved without cognitive behavioural therapy, which in all the circumstances I am satisfied is likely to improve further in the medium to long term to the extent that his current and future earning capacity is not significantly diminished.

Medical treatment and ongoing diagnoses

251 In light of what I consider are his proven abilities to work in a challenging physical and emotionally stressful environment, even if with some limitations, it is necessary to undertake a fresh review of the expert evidence to the extent that it addressed the level to which his medical condition impacts adversely on his earning capacity in the future, particularly in light of the material that the treating and reporting doctors were unaware of at the time of furnishing their reports.

252 In July 2006 the plaintiff was assessed by Dr Davies, a consultant psychiatrist, on referral by Dr Chee, a general practitioner in Mollymook, for the purposes of providing a medico-legal report. He was provided with Dr Diamond's report of December 2004. Dr Davies saw him on two further occasions before reporting in September 2006 that the plaintiff was suffering from major depression with obsessional symptoms, which he noted was then being treated with antidepressants. He noted that the plaintiff’s prognosis was uncertain but that he expected substantial improvement in the long term and that while the plaintiff would need to continue with his medication over the following 12 months he was otherwise fit for work, provided that it was in a supportive environment. This report was tendered by the defendant. Dr Davies was not called. Dr Davies’ assessment is borne out by the evidence.

253 I have already noted that Dr Roberts assessed the plaintiff for the purposes of preparing a report for the defendant in November 2006. In that report under the subheading “Present Problems” she listed what she described as the plaintiff’s current concerns as follows:

“He told me that he is physically fine and reasonably fit, but he has difficulty going out to places and difficulty socialising, which he finds frustrating. He said that he is quite a sociable person, but finds it difficult to socialise. He also told me that he has not been able to take up opportunities, such as the two jobs in Sydney and the one in at Adelaide.

He told me that he works, but washes himself with disinfectant at the end of the day. He told me that he can do the job, but is tired emotionally and has to wash himself with disinfectant…”

254 He also reported that he has approximately ten friends who he can drop in on and have coffee with but that he is not really close to them.

255 Dr Roberts noted that the plaintiff reported that various cognitive therapies he had participated in with Ms McKern over the 12 months before he left Glengarry in 2005 had assisted in setting a regular sleep pattern and that his treatment with Dr Davies over the previous four months was also of assistance.

256 Dr Roberts administered the Beck Depression Inventory and the Beck Anxiety Inventory, each of which is designed to reflect mood states at the time of administration. Despite the fact that the plaintiff fell within the severe range on the depression scale and the moderate to severe range on the anxiety scale, she was of the view that on the current evidence the plaintiff was likely to be psychologically capable of full-time employment in the future. She was also of the view that he was well suited to undertake a course of treatment of anxiety through the Anxiety Disorders Clinic at St Vincent’s Hospital to treat symptoms of anxiety and obsessive-compulsive behaviour.

257 In Dr Diamond’s report of March 2007 (18 months after the plaintiff was dismissed from The Scots College, 6 months after the cafe was purchased and 4 months before the surveillance evidence was compiled) he described the plaintiff's employment and living circumstances as dominated by chronic agoraphobia in that almost everything he does is influenced by his avoidance of an exacerbation of panic attacks and anxiety by limiting himself to those environments that he deems to be “safe”. In the report he noted the following:

“He explained that he continues to live with his parents at Mollymook. He doubts whether he could live on his own. That possibility has been discussed. He is avoidant of trying. He does not leave home if he can avoid it. He will only go into town if he absolutely has to. He limits these visits to as brief a period as possible and to such activities as going to the bank. He has no social life… He sees his safe areas as being Mollymook/Ulladulla and Bowral. He has tried to extend what he considers to be his “safe space”. He has not been able to tolerate being out of his safe areas for any length of time.”

258 Dr Diamond also noted that his mood was predominantly that of anxiety and nervousness:

“I asked him what he was anxious about. He said that he was generally anxious around people. He would be constantly vigilant about any incipient threat. He would scan the room to make sure there was no one there who might hurt or threaten him… he did not like people touching him at all…

…He still scrubs himself with hospital grade disinfectant. He retains insight into this in that he can see that he is not actually at threat from significant bacterial contamination but the compulsion to perform this activity remains compulsive.”

259 In Dr Diamond's most recent report of 5 December 2007 (a report which was prepared without further consultation with the plaintiff) he noted that despite the plaintiff’s demonstrated intellectual competence, as reflected in his university studies, and an apparent aptitude for work across a range of disciplines, his psychiatric illness experienced during the Farrer years and then again during the course of his employment at Glengarry remain part of his psychological makeup and constitute, for that reason, significant lifelong vulnerabilities. He was of the firm view that this reflected a distinct impairment in the workplace and would likely become manifest in hierarchical authoritarian institutions such as schools where he has to cope within groups and teams, demonstrate leadership qualities, perform under stressful conditions and function assertively and independently. These views must now be made in a very qualified way having regard to the very significant progress the plaintiff has made in working to improve his capacity to work, in particular in a school environment, and participate in social and community affairs.

260 Mr Borenstein assessed the plaintiff in March 2007 within a very short period of the consultation with Dr Diamond and 4 months after the plaintiff was assessed by Dr Roberts. On administration of the Beck Inventories for depression and anxiety the plaintiff yielded scores almost identical to that reported by Dr Roberts.

261 So far as his current complaints were concerned at that time the plaintiff reported to Mr Borenstein being threat sensitive “with new people, unknown people” with his demeanour on examination appearing to be wary, nervous and anxious. He reported that the plaintiff identified anxiety and panic as his major constraints and that he has managed to deal with these symptoms primarily by means of defining safe environments from which he rarely ventures. He noted that:

“Mr Gregory currently works as a barista in a cafe at Mollymook, owned by his parents, “I go in and do as much as I can cope with”…”.

(He later said that he could not work in the cafe without his parents’ backup and support, “they fill in when I can’t go”, such absences occurring several days per week, with anxiety and a propensity toward panic determining whether he is able to attend work.) Mr Borenstein went on to note:

“…He prefers to work in the kitchen and help the chef, “I can control that environment”. With regards to customers and getting on with people, “I get on OK with retirees”. When outside his comfort zone he experiences anxiety attacks with occasional panic. This leads to avoidance behaviour, “I just want to get out as soon as possible”. He works on average 10 to 15 hours per week, to a maximum of 20 hours per week. He says of his work hours, ”it varies, up and down”. He prefers to work in the evenings.”

262 Mr Borenstein was ultimately of the view that the plaintiff remains psychiatrically and psychologically disabled by reason of his long standing anxiety disorder and depressive disorder with the most persistent behavioural expression of those disorders being that of an obsessive-compulsive disorder which has become generalised into other areas of his life, particularly the workplace, which in turn limit his ability to function in everyday life. On this basis he regarded his ability to obtain and sustain employment as severely compromised, reflected in his stated ability to work only up to 20 hours per week in the cafe his parents own. For this reason, and because of limitations on his capacity to travel, it was Mr Borenstein’s view that the plaintiff's employment would have to be home based or within his safety area. In particular, he expressed the opinion that the nature and extent of his disabilities are such that he will always have difficulty working within a system where he is subject to people in authority and will have difficulty operating in hierarchical systems. He considered that the plaintiff's prognosis was uncertain as he had not participated in any intensive of long-term therapy process and that his current levels of frank avoidance would make it difficult for him to participate in any therapy program unless it were offered in his immediate environment. Given the chronic nature of his condition, Mr Borenstein considered that the plaintiff would need regular psychological input. Two sessions per week for an initial six months, followed by weekly sessions for another six months would need to be undertaken followed by assessment and fortnightly review for a year and close monitoring over the next four years at monthly intervals. Again these views must be read subject to the evidence in the proceedings as to the plaintiff’s capacity for travel and proven capacity to work within a school-based hierarchy together with his significant improvement without therapy.

263 On 27 June 2008 Dr Chee referred the plaintiff to Dr Saboisky, a consultant psychiatrist, for treatment at the suggestion of Dr Diamond. He first saw the plaintiff on 30 June 2008 at his professional rooms in Canberra. He furnished a report in the course of the proceedings which was also tendered by the defendant. In preparation for the report Dr Saboisky sent the plaintiff for what was described by him as a Personality Assessment Inventory by a clinical psychologist. These findings supported Dr Saboisky’s clinical impression of the prevalence of paranoia and obsessive elements to the plaintiff’s personality which accompanied his diagnosis of a major depressive disorder and anxiety. He also noted that the plaintiff was able to work in what he perceives to be a safe working environment (acknowledging the recently completed work at Jindabyne) and that there may be opportunities in the future where he would be able to work despite his anxiety. In the main his capacity for work, in Dr Saboisky’s view, was difficult to quantify. He noted that the plaintiff has clear dysfunction in relation to social activities, which he describes as widespread pertaining specifically to people and locations that he perceives as being threatening. While his condition was assessed as stable in Dr Saboisky’s opinion he required ongoing psychological counselling and medication.

Damages for future economic loss

264 Part 2 of the Act provides the basis upon which damages for future economic loss are to be awarded. Section 13(1) provides that the plaintiff must establish the assumptions about future earning capacity or other events on which the award is to be based accord with his most likely future circumstances but for the injury.

265 In final submissions Mr McIlwaine accepted that the plaintiff has a retained earning capacity but sought to persuade me that it was significantly diminished because of his psychiatric condition. In assessing damages for his reduced capacity to earn he tendered a document described as “the notional earnings of a teacher” which grades the actual and predicted income of a teacher up to July 2010 and then a senior teacher thereafter until age 65 which I accept is a practical and appropriate benchmark against which to assess the plaintiff’s entitlement for future economic loss.

266 Mr McIlwaine submitted that the evidence establishes on the probabilities that the plaintiff is not capable of working in a full-time capacity as a school teacher at any time in the future because of the likelihood that he will be incapacitated for work for indefinite periods given the nature of his illness and because he is constitutionally unable to apply for a position within a school in a city or even a semi-rural location. By contrast it is accepted that he has a proven capacity to work for closed periods in those schools that offer teaching positions akin to the positions he held at Glengarry between 2001 and 2005 and SCEGGS between July and September 2008.

267 Mr McIlwaine submitted that it is fair and reasonable in these circumstances to increase the percentage of 15 per cent otherwise applied for vicissitudes to 35 per cent to allow for the probability that he will work for some closed periods for some part of each year until retirement and to apply that percentage as a deduction against the annual income of a teacher for the period from 1 December 2008 to when the plaintiff reaches the age of 65. Leaving aside the associated loss in superannuation entitlements which will be discounted in the same way, the future earnings of a teacher (calculated at the agreed sum of $981,890 by the joint expert accountant’s report after applying the prescribed discount in s 14(1) of the Act) would result in an award of $638,228 - being 65 per cent of $981,890.

268 The commencement date of 1 December 2008 for the calculation of future economic loss is nominated to account for the plaintiff’s earnings in the period from October 2006 when he was paid a full-time wage for working in the cafe and the income earned at SCEGGS and, since I am satisfied that his dismissal from The Scots College was unrelated to the defendant's negligence, account would also need to be given for a period from July 2005 for some months when he would have been seeking new employment.

269 The defendant resisted any award for future economic loss whether calculated in the way proposed by the plaintiff or otherwise. The defendant submitted that the plaintiff has not established on the probabilities that he has any ongoing diminution in his earning capacity because of depression (largely because it is controlled or capable of being controlled by medication). The single feature of his illness which has the potential to incapacitate him is his agoraphobia, which he has progressively demonstrated a capacity to control, and that if he has the will and the desire to create a safe haven within which to work as a teacher or in any other gainful employment for which he is qualified he has proven his capacity to do so. To the extent that his fluctuating anxiety state may disable him in the future, the defendant submitted that can simply be accounted for by providing for a modest buffer against that risk. In any event, the defendant submitted, any award for future economic loss must be discounted because his underlying personality structure which also has a proven potential to impact upon his capacity to secure and retain work in a school environment given his dismissal from Scots.

270 I accept that the plaintiff has a diminished earning capacity and that it is practical to assess his entitlement to damages against a teacher’s wage given that his employment on both a full-time and part-time basis since leaving high school has been as a teacher. However I am satisfied there is nothing in the nature of the psychiatric injury that he continues to suffer from that in a practical sense effects the range and nature of the teaching work he can perform albeit some allowance will need to be made for the fact that in the short to medium term it may be that he is not able to work in a full-time capacity. His work at Glengarry and at Jindabyne put that beyond doubt. I regard the fact that he prefers not to teach at a school in the city or suburbs is simply a reflection of his preference.

271 In assessing the damages for the economic loss associated with his diminished capacity I am guided by the observations of Heydon JA in State of NSW v Moss [2000] NSWCA133; 54 NSWLR 536 at 553:

“…Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events…It is an exercise in estimation of possibilities, not proof of probabilities."

His Honour then quoted a passage from Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 where the majority (Deane, Gaudron and McHugh JJ) said at 643:

“…when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender materials”.”

272 The mere fact that in this case the plaintiff's entitlement to damages for future economic loss is difficult to assess does not mean that he is only entitled to a nominal sum. I am persuaded however that the plaintiff's ambition and determination to improve his life circumstances will operate in his favour in the future such as to progressively improve his prospects of obtaining the financial rewards which are reflected in his tertiary qualifications and to allow him to seek full-time employment in a suitably located secondary school. I am also satisfied that his past achievements as a school teacher are likely to be repeated and enhanced with progressive improvements and stability in his psychiatric state and that once he secures full-time employment he will retain that employment in the long term. Although his personality profile has impacted negatively on his ability to retain work in the past I am also confident that with gathering insight and maturity, aided by counselling in a therapeutic context, he will be able to work cooperatively and function well as a collegiate member of the teaching service whether in the public or private system.

273 I propose to discount the notional future earning of a school teacher and future superannuation entitlements by 80 per cent.

274 In summary my assessment of damages is as follows:

Non-economic loss	$ 247,500.00
Past out-of-pocket expenses	To be agreed
Future therapeutic costs inclusive of future medical costs	To be agreed
Future loss of earning capacity	$ 196,378.00
Future superannuation loss	$ 24,858.00
Total	$ 468,736.00

Orders

275 1. Judgment in favour of the plaintiff in the amount of $468,736.00 as reflected in the above schedule.

2. I order the parties to furnish the damages against the heads of damage to be agreed in the above

schedule in writing within 14 days.

3. Cost are reserved.

4. Liberty to restore on 3 days notice.

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