Hand v Morris

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2016 03653

DAVID HAND	Plaintiff
v
ROBERT LEONARD MORRIS & ANOR	Defendants

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATES OF HEARING:	19, 21, 22, 23, 27, 28 June 2017
DATE OF JUDGMENT:	11 August 2017
CASE MAY BE CITED AS:	Hand v Morris & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 437

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ASSESSMENT OF DAMAGES – Common law damages – Childhood sexual abuse – Ongoing psychiatric and/or psychological consequences of abuse – Loss of earning capacity – Assessment for future or potential events – General damages for pain and suffering, loss of enjoyment of life – Special damages for pecuniary loss and medical expenses – Acir v Frosster Pty Ltd [2009] VSC 454 – Akram Karam v Palmone Shoes Pty Ltd [2010] VSC 3 – Erlich v Leifer [2015] VSC 499 – Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 – Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Wilson QC with Mr D Seeman	Rightside Legal
For the First Defendant
For the Second Defendant	Ms R Annesley QC with Ms R Kaye	Thomson Geer

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

The abuse............................................................................................................................................. 3

Credit and manner............................................................................................................................. 4

Failure to call witnesses................................................................................................................... 10

Pain and suffering consequences................................................................................................. 12

The plaintiff before the abuse................................................................................................... 12
The plaintiff post-abuse............................................................................................................. 13

Assessment of general damages.................................................................................................... 30

Pecuniary loss damages............................................................................................................. 33
Mr Thompson’s evidence as to economic loss....................................................................... 45
The First Report................................................................................................................. 46
The Second Report............................................................................................................ 50
The Third Report............................................................................................................... 50

Findings in relation to the plaintiff’s work capacity.............................................................. 56
Conclusion in relation to economic loss.................................................................................. 64

Vicissitudes........................................................................................................................................ 67

Assessment of past economic loss................................................................................................. 67

Assessment of future loss of earning capacity............................................................................ 68

Future medical expenses................................................................................................................. 68

Conclusion......................................................................................................................................... 69

HER HONOUR:

Introduction

The plaintiff is a 51-year-old man who claims damages, in respect of sexual abuse (the abuse) inflicted upon him by the first defendant in 1974. The plaintiff was eight years old in grade 4 at Eastwood Primary School (the school) when the abuse occurred. The first defendant was his teacher. The second defendant operated the school and employed the first defendant.

The plaintiff claims that as a consequence of the abuse, he has sustained psychiatric injury, depression and anxiety, and claims damages for these injuries, including pecuniary loss.

In March 2016, the first defendant pleaded guilty to indecently assaulting a student (not the plaintiff) in 1971 and 1972. In this proceeding, the first defendant did not defend or deny the plaintiff’s allegations and did not appear at trial.

The plaintiff alleges the second defendant was negligent and it was vicariously liable for the abuse by the first defendant. While the second defendant admits liability for the negligence of its employees,[1] it denies it was vicariously liable for any intentional criminal wrongdoing of the first defendant.[2]
[1]Amended Statement of Claim dated 26 June 2017, [20]; Defence to Amended Statement of Claim dated 28 June 2017, [20].
[2]Amended Statement of Claim dated 26 June 2017, [21]; Defence to Amended Statement of Claim dated 28 June 2017, [21].

The second defendant accepts that the plaintiff is entitled to fair and reasonable compensation for the injuries, loss and damage he has sustained. The issue before the Court was the assessment of compensation.

For the reasons below, I have concluded that the plaintiff should receive:

·    General damages assessed at a total of   $260,000
·    Past pecuniary loss assessed at a total of                 $100,000
·    Future pecuniary loss assessed at a total of             $320,000
·    Future medical expenses assessed at a total of         $36,400
Total:         $717,000

The abuse

The abuse started ‘very early on in the year’[3] in 1974 and continued for ‘the rest of the year’,[4] occurring a couple of times a week. The first defendant would gesture to the plaintiff to come to the front of the class and sit down next to him behind an open desk. The first defendant would not stop gesturing until the plaintiff came up the front to the desk.[5] The first defendant would unzip and open his ‘fly’. The plaintiff could see the first defendant’s penis as he was not wearing underwear. The first defendant would grab the plaintiff’s wrist and push down until the plaintiff’s hand was holding his penis. If the plaintiff tried to move his hand away, the first defendant would grab the plaintiff’s wrist and place it back on his penis.[6]
[3]T 17, L2.
[4]T 20, LL13-14.
[5]T 17, L8.
[6]T 19, LL11-14.

The plaintiff said that he did not want to go to the front of the classroom next to the first defendant. He knew it was wrong but he felt he could not disobey his teacher. His parents told him to always obey his teacher.[7]
[7]T 18, LL23-24; T 19, LL8-9, T 20, LL18-20 and T 24, LL19-20.

Ms Edwina Ricci, a student in the plaintiff’s class in 1974, gave evidence that the first defendant preyed on the plaintiff a lot.[8] Ms Ricci said that she and other students observed the abuse taking place in the classroom.[9]
[8]T 480, LL7-8.
[9]T 473, L20; T 469, LL2-5.

The abuse and the nature of the abuse was not disputed or denied by the second defendant. The plaintiff’s version of events and recollection in relation to the abuse stands unchallenged. Ms Ricci’s evidence corroborates the public nature of the abuse and the duration.

Credit and manner

The parties made submissions in relation to the credit and manner of the key witnesses, notably the plaintiff, Mrs Mavis Hand (the plaintiff’s mother), and Ms Ricci. I deal with Mrs Hand as a witness at paragraph 39, and Ms Ricci at paragraph 54.

The plaintiff impressed me as a witness. I observed the emotional distress caused by the abuse. I observed stoicism but also great vulnerability. Having regard to the evidence as a whole concerning the effects of the abuse on the plaintiff, including the evidence of Mrs Hand, Ms Ricci, and Ms Christina Howard (the plaintiff’s work supervisor) and the evidence of the medico-legal experts, I accept the plaintiff’s evidence as to the ongoing effects of the abuse experienced by him. I accept the plaintiff’s evidence that as a consequence of the abuse he initially suffered from deep feelings of shock, shame, disgust, helplessness and guilt. He sought to do things to the best of his ability so as to not disappoint people, but his anxiety impeded his ability to move beyond a very carefully structured world he created and learned to function within.

I consider the plaintiff was an entirely genuine witness who did his best to answer questions put to him. The plaintiff presented as anxious, under confident, insecure and, at times, as noted by the plaintiff’s counsel in closing submissions, ‘broken’.[10] My observations of his manner and demeanour in the witness box are consistent with what he said about the impact of the abuse on his life.
[10]Plaintiff’s written submissions dated 28 June 2017, [11].

I consider the plaintiff was at pains to ensure that his evidence was accurate. By way of example, in cross-examination the plaintiff’s tax return for the year ending 30 June 2016 was put in issue to the extent that it reflected a total income of $71,672[11] in circumstances where the plaintiff’s evidence had been that his total income for that year and the previous four years was $69,239.[12] It was put to the plaintiff that because of his years of experience and his performance he was paid a higher rate in the 30 June 2016 financial year than the base salary of $69,239.[13] The plaintiff was adamant that he was not paid more than $69,239, despite the 2016 tax return.[14]
[11]Exhibit D4.
[12]T 114, LL19-20.
[13]T 114, LL15-19.
[14]T 113, LL 21-25; T 114, LL19-21.

The plaintiff was concerned about the anomaly in his 2016 tax return and offered to bring in every payslip. He became quite preoccupied with the discrepancy in his understanding of his income and what was reflected in the 2016 tax return. It was not until the second defendant’s counsel suggested that the plaintiff set aside the documents and that the issue could be dealt with at the next hearing day that the plaintiff was able to concentrate on the next issues and questions.[15]
[15]T 118, LL19-20.

The plaintiff’s desire to reconcile the 2016 tax return was most telling when he resumed cross-examination the next day. It bears repeating the transcript of his evidence and explanation:

Mr Hand, you were concerned on Monday about your 2016 tax return and the fact that it shows $71,000-?---Yes, mm.
Have you been able to assist?—Yes, I have been able to fix that up.
Yes?—Will I explain it?--- I worked it out myself because I – I knew I’d never gone up because I’d never managed staff. They would – you had to be told by the boss if you were going to go up to a five level. It never happened. I worked it out myself. I know this might be a little long-winded, but I wrote it out and I worked it out myself.
Do you want? – Okay? ---…so I wish to advise your Honour, that my salary has never changed. Calculations, 7 x 52 = 364 days. There’s one day left over every year, 12 days extra in a 12-year period. In a twelve-year period you have three leap days. It’s 15 extra days every 12- in a 12-year period. So every 12 financial years you have one financial year that has 27 fortnight-ending pay periods. I’ve written out the 2015, 16, 17, the last two financial years, the fortnight ending pay dates for Centrelink. Um, and I have the calendars from 15, 16, 17 if you need to check that. In the 2015/16 financial year, Centrelink had 27 pay dates in the financial year. So, my base salary is $69,000 divided by 26, and then multiplied by 27 fortnight pay days, equals the $71,672 specified in the group certificate. Cause you had three fortnight ends in July 15, three fortnight endings in December 15 and three fortnight endings in June 16. So, once every 12 years you have 27 pay days, even though your salary’s still the same. It makes your taxable income higher for one, for one, by one fortnight with the same salary every 12 years, because that’s extra day each year we gain and that’s ….
So, that’s your explanation for $71,000?---Well, that is the truth. I always tell the truth…Mathematically you have 27 fortnights in one year every 12 years and that makes your taxable income higher…
And it may be because of this basis upon which you explained to her Honour. Correct?---Yes, yes, your Honour…
And it may be because you had additional responsibilities or you got performance based?---No, no. I had no additional responsibilities. You can ring Centrelink at any time. They will verify how they’ve never been paid as a five. I have to be told by the manager, I’d have to go into management meetings. You have to be told if you’re a five. You can’t just go up to a five level. You would have been told in writing, and you would have to be seen. You’d have to be part of the management group, to sit together to discuss things. There were 27 fortnight pays in that financial year, and that is the only reason why the pay is that high. Is 27 rates of – if you divide this by 26 and multiply it by 27, it comes to $71,572.[16]

[16]T 136, L16 – T 138, L20.

The plaintiff’s evidence on this issue and careful calculation of the pay period in a 12-year span is an example of his anxiety and desire to be accurate and truthful. In his evidence about the 2016 tax return he said ‘well that is the truth, I always tell the truth’.[17]
[17]T 137, LL20-21.

The second defendant submits that the way in which the plaintiff gave his evidence about the impact of the abuse gave a strong impression of having ‘a well-rehearsed speech which he sought to give the Court on many opportunities’.[18] In particular, it was submitted that in evidence in chief and cross-examination, the plaintiff continually returned to particular themes including:
[18]T 526, L30 – T 527, L1.

· feeling humiliated;

· feeling terrified that someone would say something about the abuse;

· crippling anxiety;

· worrying about what others think of him or were saying about him;

· embarrassment;

· destruction of his self-confidence and self-esteem;

· worrying;

· stressing; and

· feeling ‘negative underneath’ although it was not outwardly visible.

It was submitted that the plaintiff returned to these themes unprompted and was in place of a responsive answer to a question.

I do not accept the second defendant’s submission. It is true that the plaintiff returned to the themes identified by the second defendant; however, I accept that these thoughts and concerns were not a well-rehearsed speech but evidence of the genuine effects and impact of the abuse on the plaintiff since it occurred in 1974. The plaintiff gave his evidence about these feelings, concerns and themes in a compelling manner. In the circumstances of an individual giving evidence at a trial, I consider that he gave his evidence in a measured way. The plaintiff said from the outset that throughout primary school and secondary school he was petrified that someone was going to say something about what the first defendant was doing to him, which was viewed by his classmates. However, he did not suggest that anybody actually said anything, but that that was his fear. He described having crippling anxiety as a young person because he thought one of the students might say something about the abuse. This evidence is to be understood in the context of an eight-year-old boy publicly abused in the classroom.

The plaintiff’s constant return to these themes and concerns in his evidence is consistent with the impact the abuse has had on him, leaving him in effect a broken man, fixated on the shame, helplessness, humiliation, and suffering from crippling anxiety leading to a fear of social interaction plaguing him since the abuse. The plaintiff was on occasion unresponsive, but no more than you would expect of any lay person giving evidence at trial on topics and matters such as this case.

The plaintiff gave evidence of his immediate social withdrawal in grade 4 and onwards and his desire to live a life whereby he did as he was told, his fear of losing his job and his immobilisation in terms of his progress in the work force. This is not a case in which the abuse or its effects have been documented; however all of the evidence points to the abuse having an immediate and permanent effect on the plaintiff.

It was put that the plaintiff’s perception of the impact and effect of his generalised anxiety disorder is not consistent with subjective reality. This submission misses the point. It is the very inconsistency between reality and what the plaintiff feels and perceives due to his anxiety that is at the core of his injury and his claim. His supervisor, Ms Howard, gave evidence about the plaintiff’s anxiety about losing his job before reaching 55 years of age, at which time he is entitled to a pension. She said that the plaintiff’s concerns are misplaced. The plaintiff gave evidence about his fear of other students saying something about the abuse even though no one raised the issue. These inconsistencies between his fears and anxiety and reality do not make the plaintiff an unreliable or untruthful witness. To the contrary, they are stark examples of how his generalised anxiety disorder affects his functioning and impacts on him emotionally and psychologically. Dr Shan, consultant psychiatrist, examined the plaintiff at the request of the second defendant’s solicitors and prepared a report dated 12 January 2017. He also gave viva voce evidence. In his report, Dr Shan noted that the plaintiff ‘experiences a high level of anxiety almost constantly. This causes him to become anxious and catastrophize whenever he is faced with any issues’.[19] Dr Shan explained that patients with generalised anxiety conditions have somewhat disproportionate reactions to situations.
[19]Exhibit D15, page 2.

As noted, there was no evidence contradicting the plaintiff’s evidence about the actual abuse or the impact of the abuse giving rise to the generalised anxiety disorder. While there may have been some inconsistency between the plaintiff’s evidence and that of other witnesses, any inconsistency was on the whole not significant and not enough to impact the plaintiff’s evidence or credibility as a witness. Ms Howard regarded the plaintiff as a man of integrity.[20] His work performance reviews were on the whole extremely complimentary about the plaintiff at a personal level, to the extent that an annual performance review recorded:

The plaintiff’s intent, honesty and integrity is of the highest order and unquestionable.[21]

[20]T 266, L28.

[21]Exhibit D14, page 22.

Finally, I consider that the plaintiff gave his evidence in a measured way and made appropriate concessions. In relation to his attitude to work generally and ability to perform his duties, he did not say he could not complete his duties. He said he intended to retire at age 54 years and 11 months and not seek work after that. In relation to his relationship with his wife, he gave evidence that issues of intimacy had arisen after the birth of their son Nathan in 2007 caused by his wife’s lack of interest in sexual intimacy rather than his lack of social confidence or anxiety-related symptoms. His evidence was that he and his wife were not close.[22] In evidence-in-chief he was asked if the abuse affected his relationship with his wife. His evidence was that the abuse affects his ‘skills, with everyone, I’m always anxious and not very good talker, and I don’t communicate very well with people…’.[23] He said that his anxiety tended to put pressure on his family sometimes; ‘I get more upset about little things more than Karen would.’[24] The plaintiff agreed that there was no reason why he would not have a more intimate relationship with his wife and that any intimacy issues he has with his wife stem from her and not him. He agreed that they had drifted apart over the years and that they no longer slept in the same room. He agreed that he had a good libido.[25]
[22]T 87, LL27–28.
[23]T 47, LL24–27.
[24]T 47, LL28–29.
[25]T 179, LL10 & 13.

The plaintiff’s evidence in relation to other matters, including whether he had suicidal thoughts and depression, was measured and plausible. The plaintiff said quite frankly that he had thought about suicide, but that he never planned or seriously considered it due to his family. His evidence was that ‘I’ve felt pretty low sometimes but I would never be brave enough for suicide. I don’t think so’.[26]
[26]T 88, LL22-24.

For the reasons above, I consider the plaintiff to have been a credible and reliable witness and I accept the plaintiff’s evidence in relation to the abuse and its impact on him.

Failure to call witnesses

The second defendant submitted that the Court can draw inferences from the plaintiff’s failure to call certain witnesses.

The availability of a Jones v Dunkel[27] inference in respect of a failure to call a witness is predicated upon the satisfaction of the following three conditions:
[27](1959) 101 CLR 298.

(a) that the missing witness would be expected to be called by one party rather than another;

(b) the evidence of the witness would elucidate a particular matter; and

(c) the absence of the witness is unexplained.[28]

[28]Payne v Parker [1976] 1 NSWLR 191, 200-02.

I consider that in a case such as this one, ordinarily the plaintiff would be expected to call his wife. The second defendant submitted that the Court should draw a negative inference from the fact that the plaintiff did not call his wife to give evidence.

The explanation for the failure to call the plaintiff’s wife was given in closing submissions; that it was a matter of embarrassment for the plaintiff and the plaintiff’s relationship with his wife is somewhat fragile.[29]
[29]T 562, LL1-3.

I accept that the plaintiff’s wife could have given evidence about her relationship with the plaintiff and the plaintiff’s general disposition, anxiety and social interactions in the home environment. In relation to the relationship itself, I had the plaintiff’s evidence which was that the abuse and its impact may have affected the intimacy and relationship to some extent. The plaintiff’s evidence, which I accept, was that he had only disclosed limited details of the abuse to his wife.[30] He said that he didn’t want to talk about the abuse to anyone and that, other than his parents, he had never mentioned the abuse.[31]
[30]T 47, L14.
[31]T 47, LL16-20.

Given the plaintiff’s own evidence in relation to his marriage as set out in paragraph 24, I do not consider his wife’s evidence would have assisted. The plaintiff accepted that their relationship was not close and that while the effects of the abuse have played a part it was not the only or main reason for the emotional and physical distance between them. In circumstances where the plaintiff has not disclosed details of the abuse to his wife and his obvious and explicable reluctance to talk about the abuse since it occurred, I consider this to be an acceptable reason for the plaintiff’s wife not being called. Further, I do not consider that her evidence would have advanced the issue of their relationship any further. In relation to any evidence the plaintiff’s wife could have given about the plaintiff at home and his coping, the plaintiff’s own evidence is that he, in effect, has a quiet life at home, engages with his children, has joined in social activities such as playing tennis but is generally socially isolated. Again, for the reasons set out above, I do not consider the plaintiff’s wife’s evidence would have advanced the issue much further.

Criticism was also made of the plaintiff’s failure to call his brother. The plaintiff’s evidence was that he only sees his brother once or twice a year.[32] His brother is two years younger than him and so is unlikely to be able to recall or give any meaningful evidence about the plaintiff before and after the abuse.
[32]T 55, L12.

The second defendant also made submissions about the plaintiff’s failure to call his treating general practitioner, Dr Fung. Dr Fung has been the plaintiff’s treating general practitioner since before the abuse and continues to treat the plaintiff today. It was submitted that the Court should infer that Dr Fung’s evidence would not have assisted the plaintiff.

The evidence is that the plaintiff disclosed the abuse to Dr Fung for the first time in March 2017, and records show that the plaintiff raised a lack of confidence and social behavioural problems with Dr Fung as a young man in 1982.[33] However, there is no evidence that the plaintiff attended upon Dr Fung in relation to his anxiety suffered as a result of the abuse before March 2017, and there was only one attendance after that time, in May 2017. In these circumstances, I do not consider that the failure to call Dr Fung necessarily means that his evidence would not have assisted the plaintiff’s case.
[33]Exhibit D6, 22 November 1982.

Importantly in relation to the effects of the abuse, there was evidence from the medical practitioners about the plaintiff not coping and having an anxiety disorder. There was evidence from Mrs Hand, Ms Howard and Ms Ricci as to the plaintiff’s behaviour and poor coping. Most importantly, I had the benefit of observing and hearing the plaintiff’s evidence over two days in the witness box.

I am satisfied that the plaintiff’s case, in relation to the effects of the abuse on his life and work is proved on other evidence and in particular, in relation to the plaintiff’s brother and Dr Fung, their lack of evidence was relatively unimportant.

Pain and suffering consequences
The plaintiff before the abuse

As is to be expected, the plaintiff gave limited evidence about what he was like before the abuse in 1974. His evidence was that he was a normal child prior to the abuse. ‘I was just average sort of bright, happy person. That’s what I remember, I was… school was nice and it was all good.’[34] His evidence was that he was ‘happy’.[35]
[34]T 1, LL21-24.
[35]T 171, L26.

Mrs Hand, the plaintiff’s mother, gave her evidence in a very straightforward manner. She gave her evidence in a measured way and I consider that on the whole she was a reliable and credible witness. She tried to answer questions carefully and had a good memory of key events relating to the plaintiff. I consider that Mrs Hand is the person best placed to recall what the plaintiff was like as a child and to have observed any changes in his behaviour post the abuse. She gave evidence that the plaintiff was a very happy little boy, looking forward to going to school and that once at school he enjoyed it. She said that before the abuse he played with children and he was a happy boy.[36]
[36]T 443, LL8–14.

Ms Ricci’s memory of the plaintiff before 1974 was that he was a ‘fairly normal person,[37] a boy with nothing unusual about him[38] and not someone who stood out as particularly awkward or anything like that.’[39] Ms Ricci agreed that she didn’t have much of a recollection of the plaintiff prior to 1974.[40]
[37]T 471, L4.
[38]T 487, L27.
[39]T 487, LL30-31.
[40]T476, L25; T 477, LL9-10.

Dr Tagkalidis, consultant psychiatrist, examined the plaintiff at the request of the plaintiff’s solicitors and prepared a report dated 3 November 2016. He also gave viva voce evidence. He was of the opinion that there was no reason to think other than that the plaintiff was developing normally prior to the abuse.[41] Dr Tagkalidis’ evidence was that if a child was happy at five years, ‘the likelihood is that there is going to be unlikely to develop substantial psychiatric problems later on.’[42] There was no evidence of any history of mental illness.
[41]T 213, LL29-31.
[42]T 227, LL8-10.

The plaintiff post-abuse

Before turning to the plaintiff’s evidence about the impact of the abuse on him, I want to consider Mrs Hand’s compelling evidence about her observations of her son and the change in his behaviour in 1974. Mrs Hand’s evidence was that in grade 4 she noticed that the plaintiff was becoming very withdrawn, shy and worried.[43] She said that she tried to raise the plaintiff’s behaviour with him but he always said nothing was wrong.[44] Mrs Hand said that she was sufficiently concerned about changes in the plaintiff’s behaviour to speak to the first defendant at a parent teacher meeting. She asked the first defendant if there was any problem at school and if the plaintiff was having problems with any children or work.[45] The first defendant told Mrs Hand that the plaintiff was shy and that he had set up a microphone for shy boys to help them overcome their shyness.[46] Mrs Hand’s evidence was that the change in the plaintiff’s behaviour was very marked[47] and that the change continued throughout his childhood and teenage years.[48]
[43]T 443, LL16-17.
[44]T 443, LL19–20.
[45]T 443, LL27–29.
[46]T 444, LL11–15.
[47]T 444, L17.
[48]T 444, LL18-19.

Mrs Hand’s evidence was that the plaintiff struggled socially as he grew up. She said that she did not have memories of him having friends over to their house or taking him to other boys’ houses.[49] She agreed that as a child the plaintiff had a particular friend in the street that he had grown up with, and that he played with children in the street.[50] Mrs Hand did not have any recollection of the plaintiff having a girlfriend, and she was the one who was concerned about his social isolation and ‘pushed him into’[51] joining Rotaract, which he did. Mrs Hand could only recall the plaintiff being involved in a play at school once and that his involvement was limited to backstage movement of scenery and props.[52]
[49]T 444, LL24-27.
[50]T 455, LL10-17.
[51]T 449, L21.
[52]T 445, LL1–3.

Mrs Hand’s evidence was that she sees her son every week and talks to him on the phone. She said that he talks to her a lot, vents about his worries and about how anxious he is about everything in life and work and how much he is really looking forward to retirement.[53]
[53]T 450, LL2–5.

Mrs Hand accepted in cross-examination that there was nothing particular about grade 4 that stood out in her memory, other than ‘only [the plaintiff’s] attitude’.[54] In cross-examination it was put to Mrs Hand that the concern she raised with the first defendant at the parent teacher interview related to the plaintiff’s shyness. Her evidence was that she was worried about the plaintiff and wanted to know if there was a problem at school with other children or the work. She denied that he was shy and repeated that he was a happy little boy.[55] Mrs Hand was asked if the plaintiff continued to be a happy little boy and her response was ‘not so much afterwards, no, his last couple of years were unhappy at school.’
[54]T 452, LL7-8.
[55]T 452, LL21–22.

Mrs Hand agreed that she did not raise her concerns with a doctor or seek any sort of counselling. Her evidence in that regard was that in those days there weren’t any counsellors at the school. In relation to external support or counselling Mrs Hand’s evidence was ‘we didn’t do anything like that’[56] and it was not something that had occurred to her at the time. It was put to Mrs Hand that if she had been concerned about the plaintiff she would have done more to assist him. Her evidence was that all she could say was that she was always concerned about him.
[56]T 453, LL16–17.

Mrs Hand’s evidence in relation to the plaintiff’s bicycle riding as an adolescent was that initially he rode around the streets and then at secondary school he started riding his bike more and he would go for longer trips and exhaust himself. She described that the plaintiff would ride his bike in the Dandenongs at or about 16 years of age. He would go down to the coast and he would just ride and ride. She thought that the plaintiff got something out of it[57] and that he was able to rid himself of his emotions and anxieties.
[57]T 456, LL26-31.

Mrs Hand’s evidence was that the plaintiff had a giant inferiority complex[58] and that the abuse ‘really had a terrible effect on [him]’.[59]
[58]T 465, L7.
[59]T 465, LL26–27.

I have already touched upon some of the plaintiff’s evidence in relation to the impact of the abuse on him in primary school and secondary school. The plaintiff’s evidence was that he was humiliated by the abuse.[60] He felt terrified that somebody would say something about the abuse and that the children were talking behind his back.[61] He repeated in the course of his evidence his concerns including ‘my fear underneath – everyone else knew, and I just felt useless and ridiculed and – hopeless because of that.’[62] His evidence was that:

I was happy when I was young, when my anxiety and my fear – when this happened to me in grade 4, this is when this – my life changed… I was worried about what the other kids thought about what I’d done… and what happened to me and they must know and they must be talking about me. It just – devastating. I felt really helpless.[63]

[60]T 19, L20.

[61]T 57, LL11-17.

[62] T 94, LL19–22.

[63]T 126, LL16-24.

The plaintiff, Mrs Hand, and Ms Ricci’s evidence was that the abuse had an immediate effect on the plaintiff. The plaintiff’s evidence was that he did not want to talk, he wanted to stay by himself and he has had ‘crippling anxiety’.[64] He described having very low self-worth and terrible crippling anxiety his whole life worrying about everyone and everything including what people thought of him.[65] He went on to say in his evidence:

You might not – I know it seems silly and it doesn’t seem apparent, Your Honour, but that is how I’ve always felt underneath. This isn’t just a game for me. This is real life and I spend a lot of emotion, time, worry and stress. It effects my life and how I interact with other people and I suffer because of it. I have my whole life and it’s not apparent and I’ve never, I’ve never sought treatment for it. I’ve just put up with it. But that’s how I’ve always been, how I’ve always felt underneath. I know it doesn’t seem apparent and you just think I’m just saying it but it’s not. I have always felt this way. It is how I have been my whole life. I look perfect, functional and I give 100% because I don’t want to – I want to as much as I can but I am very, very anxious and I do not get on with people socially and in private life and at work. The work I feel more than in private life but it effects my whole relationship. I haven’t got many friends or much contact at all. I’m basically isolated and I want to my garden, that’s the honest truth and I’m not going to work anymore once I get to 55 and that’s just how I am… [66]

[64]T 21, LL29-30.

[65]T 123, LL19–21.

[66]T 123, L21– T 124, L12.

The plaintiff was asked in re-examination how he could reconcile his ability to hold down a job while he has crippling anxiety on a day to day basis. He said that his crippling anxiety relates to what other people think about him even though he was seemingly functioning on a day-to-day level, and the term for him meant that he never felt good enough.[67] He says he worries constantly about his performance and if he is meeting requirements. He repeatedly said in his evidence that despite giving 100%, he continues to worry that he is not doing enough and that everybody else feels he is inferior and not good enough. He agreed that he could perform day to day functions and tasks but he found social interaction difficult. He said that he stays close to home, limits his social interactions and that he can cope with basic activities with his family.[68]
[67]T 194, LL12–19.
[68]T 194, LL1-11.

In relation to the abuse the plaintiff’s evidence was that he was really scared. He thought he was at fault and that he had done something wrong.[69] The plaintiff said that he became quiet and withdrawn and very, very scared.[70] The plaintiff’s evidence was that shortly after the abuse he did not want to talk and he wanted to stay by himself and not do much because of the feelings of humiliation and fear of other students saying something about the abuse and feeling very scared of everyone.[71] He said that in grade 5 he did not play sport with other students and he tended to stay ‘to the side, to myself’. He said that about 70 to 80% of the students from his primary school also attended Ringwood High School.[72] He said that in secondary school he stayed with a couple of quiet kids and he still felt that the students were talking about him. He was quiet and withdrawn and very scared. He said that he was anxious and that he felt that he had done something wrong.
[69]T 23, LL4-6.
[70]T 22, LL26-27.
[71]T 21, LL27-31.
[72]T 22, LL2–3.

Ms Ricci’s evidence was that the plaintiff changed so much over the course of 1974, that she reported the abuse to her mother on the last day of school.[73] Her evidence was that the plaintiff became fearful and seemed anxious.[74] He became withdrawn[75] and stood to the side in the playground.[76] Ms Ricci’s evidence was that from the beginning of grade 4 to the end of grade 4 there was a ‘stark difference’ in the plaintiff’s personality.[77] She said that he ‘became invisible, not wanting to be noticed’.[78] Ms Ricci said that the plaintiff’s non-participation in social and schoolyard events escalated over the course of the year in which he was abused and continued at secondary school.[79] Ms Ricci attended the same secondary school as the plaintiff and she observed the same behaviour in the plaintiff in primary school as in secondary school. Ms Ricci described the plaintiff as ‘fearful, anxious, invisible, again, not really that involved.’[80]
[73]T 470, LL18-20; T 472, LL13–16.
[74]T 471, LL6-7.
[75]T 486, L20.
[76]T 472, LL7–9.
[77]T 473, L31 – T 474, L2.
[78]T471, LL8-9
[79]T 472, L13.
[80]T 473, LL5–7.

The second defendant submitted that the Court ought to place little weight on Ms Ricci’s evidence; that it is implausible that a child of nine years could accurately remember the plaintiff’s personality traits, and that her evidence as to his personality or changes was reconstructed 40 years after the event and inherently unreliable.[81] It is an extraordinary event for any person, let alone a nine-year-old girl, to observe repeated abuse against another child over a year-long period. The fact of this extraordinary event, together with Ms Ricci’s evidence that children spoke of the abuse and that she was moved to report the abuse to her mother, and my observations of Ms Ricci in the witness box, support my finding that Ms Ricci is a reliable and credible witness.
[81]Second defendant’s written submissions dated 28 June 2017, [41].

The plaintiff’s evidence was that he has felt his anxiety since grade 4.[82] He has always feared not coping and not getting through school and his work life.[83] The plaintiff’s evidence was that he lacked confidence since the abuse, but that he tries his best and does what he has to do to keep going.[84] His evidence was that he has been very unhappy and he has had a hard time his whole life. He said that his anxiety interferes with his life and that while he functions and gives 100% he suffers from extreme symptoms from his anxiety. He described his anxiety as ‘hidden’.[85] In cross-examination he said that:

This is where it [anxiety] seems like it’s not real. You can’t see it face to face. I give 100%. I try not to show anything to my work people, but underneath I am scared of everything and I give 100% and no matter how much I give I still think it’s not good enough. This I have felt ever since this [the abuse] happened. I’m only a little boy, this happened to me. It’s affected my whole life, my whole happiness, my enjoyment of life, my interaction with other people. I do not feel confident. I might come across – I get by, I do what I can, I go home.[86]

[82]T 125, LL28–29.

[83]T 126, LL10–13.

[84]T 103, LL13-15.

[85]T 87, L4.

[86]T 87, LL4–14.

The plaintiff said that the social isolation that he experienced as a student in primary and secondary school continued throughout his adult life. His evidence was that he kept to himself most of his life and that when he started work he was always worried what other people thought about him. He said that he spends all of his breaks at work outside in the garden, while everyone else goes into the tearoom and talks. He said that he does not intermingle with staff and keeps to himself because he does not feel ‘good really talking to people’ and that he does not have much confidence. This was corroborated by Ms Howard.[87] He noted that even though he can talk to people at work and deal with work related issues, this was different to social conversation which required personal skills and having to make conversation. He said he does not have many friends at home and he even finds it hard to talk to family.
[87]T 268, LL8-26.

There was evidence in relation to a diary kept by the plaintiff.[88] Exhibit P1 is referred to as the plaintiff’s diary but it is not a diary in the traditional sense. It is a notebook in which the plaintiff keeps statistics and scribbles on a number of topics including football and cricket scores, and importantly a series of handwritten calendars which calculate in various ways the number of days or months until the plaintiff will be able to retire on what is referred to as the 54/11 Pension Scheme for public servants employed by the Commonwealth (54/11 Pension).[89]
[88]Exhibit P1.
[89]The Commonwealth Superannuation Scheme provides that if a member intends to retire at the minimum retirement age, the member may receive a CSS higher pension benefit if the member resigns and preserves his/her benefit at least 2 calendar days before reaching minimum retiring age.

The plaintiff’s evidence was that he keeps the diary by his chair at home[90] and he reads it morning and night.[91] He has always kept a book such as Exhibit P1 since starting in the public service, however Exhibit P1 is from approximately 2006. He explained that he transferred his writings from another diary that he was keeping at approximately 44–45 years of age. Exhibit P1 reflects the last ten and a half years and has statistics in relation to his retirement in 2020. The plaintiff was asked about the diary’s purpose and why he kept it. His evidence was that:

This is just getting closer and closer to retirement. I always thought I would never make it and I’m just getting so close – I’m just getting closer every year, and I just feel safer and safer, I’m going to make it, I’m going to make it. Then I’ve got to – I’m providing for my family, and I won’t have to work anymore.[92]

[90]T 165, L17.

[91]T 35, L21.

[92]T 36, LL9–15.

The evidence was that the various tables and calendars provide the same information, that is how long it is until the plaintiff reaches 54 years and 11 months and he can retire. He was asked why he has the tables or information in different formats. The plaintiff’s evidence was:

I don’t know. It just makes me feel better that I’m getting close and I can make it and I just like – yeah, it just makes me feel good, safer sort of. I can get out and stop working.[93]

[93]T 41, LL28–31.

In cross-examination it was put to the plaintiff that he kept the statistics because he likes working out statistics.[94] The plaintiff said that the cycling and swimming statistics provide a way in which he felt that he was marking an achievement and proving to himself to do more, that it made him feel good and that it was a release from tension and stress. He said that the figures were not just statistics, they represented what he had achieved and that he had done something worthwhile.[95] In relation to the statistics about the time until retirement, he said that it was not an interest, but it represented a fear about reaching the 54/11 Pension and that the keeping of the diary was a way in which he could tangibly see that he was getting closer to the retirement date.[96]
[94]T 62, LL18–19.
[95]T 62, LL21–28.
[96]T 63, LL9–11.

Dr Tagkalidis described the plaintiff’s diary as a way of orienting himself to get through work. He said ‘it’s very much a day by day proposition, and that it allows him to show himself that he’s getting there bit by bit… I think it shows a significant degree of rigidity in the way that he copes with life in general and certainly getting through his daily work’.[97] He gave evidence that the diary is a ‘significant indicator of internal emotional distress’[98] and that the marking off allows the plaintiff to contain some of his anxiety and cope with his work until retirement.[99]
[97]T 208, LL16-22.
[98]T 208, LL26-28.
[99]T 209, LL2-5.

In relation to recreational activities the plaintiff’s evidence was that he was initially a keen cyclist until an serious accident in 1982 when he was hit by a motor vehicle while riding his bike (the motor vehicle accident). He then used to swim five days a week from 18 to 21 years of age. He said that he now swims once a week. In cross-examination the plaintiff also agreed that he had been playing pennant tennis for approximately 10 years and that he enjoyed that activity.

The second defendant pointed to evidence that the plaintiff had had friends, and pointed to photographs which showed him with his younger brother and a boy who lived in the same street with whom they were friends over the years while living at home. In cross-examination reference was made to Exhibit D1, a reference from the plaintiff’s acting principal at Ringwood Secondary School dated November 1981 which refers to the plaintiff as a quiet, hardworking, conscientious student, polite, pleasant and liked by his classmates. The reference notes that the plaintiff took part in the school cross-country team in that year and that he had been a keen participant in the annual school musical production in previous years. The reference goes on to describe the plaintiff as a young man who makes every effort to do his best, who is reliable, honest and has a pleasant sense of humour.[100]
[100]Exhibit D1.

Ms Howard confirmed that the plaintiff is well respected by his colleagues in the Lilydale Centrelink office.[101] His workplace appraisals are consistent with the plaintiff being a hard-working, reliable and capable contributor to his workplace. However, Ms Howard gave evidence that the plaintiff comes across as quite anxious a lot of the time. Ms Howard agreed that to some extent his anxiety is hidden, however she said that she can certainly see that the plaintiff is an anxious person and she thinks that he keeps it to a level of control so that he can manage his work.
[101]T 266, LL27-29.

Having observed the plaintiff in the witness box and considering the totality of the evidence, it would be inaccurate to consider the plaintiff as unaffected by the abuse because he is able to function on a day to day basis. The fact that he is married, has children, works and can participate in life’s activities is not evidence that dismisses the impact of the abuse or establishes that the impact of the abuse has been minimal or superficial in his life since 1974. Most activities that the plaintiff engages in from his swimming and cycling to his attendance at work and the way in which he engages in those activities is laced with the damaging effects of the abuse on him. The plaintiff is able to work and has done so diligently and competently at a base level since 1983. However, the plaintiff’s evidence that I accept is that on a daily basis his unfounded fears he may lose his job before turning 55, his poor self-worth and lack of confidence and his constant belief that he is not living up to expectations prevent him from deriving the normal pleasures you would expect from these day-to-day activities. While the plaintiff is able to perform his work and interact with other staff, he socialises minimally with friends and colleagues, and lacks confidence. He is denied the sense of achievement one feels in the workplace. His bike riding and swimming were predominantly a mode of dealing with stress and tension and were solitary activities. I note he played pennant tennis for 10 years and was therefore able to socially interact and derive some pleasure from this activity.

The plaintiff did not give evidence that he was not able to function; to the contrary his evidence was repeatedly that he endeavours to do things to the best of his ability and puts in 100%. However, each day is marked by what he described as crippling anxiety, unfounded fears and poor self-worth. His mode of surviving was to become, as Ms Ricci described, invisible.[102] I accept that as a child and an adolescent, the plaintiff on a daily basis lived in utter fear that a student may say something about the abuse despite the fact that at school nobody ever raised the issue with him.
[102]T 471, LL8-9; T 472, LL4-6.

The plaintiff’s diary was not consistent simply with somebody who liked to keep statistics. His diary was an expression of his obsessive worrying that he would lose his job before reaching the date he can access the 54/11 Pension, and demonstrates an obsessive fixation on retirement. The physical appearance of the diary, somewhat tattered, with each page filled with repeated calendars, statistics and scribblings, is demonstrative of the disturbing nature and effect of the anxiety on the plaintiff’s life.

The second defendant submits that the plaintiff’s introverted and unsociable nature may not have been connected to the abuse but rather that he is simply of a personality type: quiet, withdrawn and not particularly sociable. I accept the plaintiff’s evidence that he struggles socially and chooses to minimise his communication and interaction with people because of the negative impact that the abuse has had on him and his perception of himself and of what other people think about him.

The plaintiff did not shy away from his evidence that he has maintained a marriage for 20 years with two children, Nathan (born in 2007) and Melissa (born in 2004). His evidence was that he tries to be an active and engaged parent and that he participates in annual family holidays, takes his son to swimming lessons and kicks a ball in the playground.

When asked about performing a role in the APS-5 category and if it worried him, the plaintiff’s evidence was that he did not like dealing with people and that:

‘I just like doing my safe thing that I can do. I worry I’m not doing it well enough, I feel I’m too slow. I always worry about what other people are thinking about me. Even though everyone always says I’m fine, I just worry about losing my job, and being forced to - losing all these years I’ve worked for nothing and not getting to my pension. I have been stressing. Before that stat book I, I’ve always had stat books all the way through, trying to last until retirement. I don’t have much confidence in my ability. Everyone says I’m good, but underneath - ever since grade 4 I’ve always doubted myself with everyone. Everything about my life. Socially, at work, everywhere. You might think I look fine and I’ve presented and I get through, but underneath, the worry and the stress, and at night time, at time, even dealing with my wife and things, everything is hard. I might seem fine and I present well, but I worry about everything. I spend so much time worrying about things and feeling inadequate about everything.’[103]

[103]T 34, LL2-21.

In response to a proposition that other people had left his work department and could not cope with the stress that he could, the plaintiff’s evidence was that he believed that if the abuse had not occurred he would have been more confident to go on to look for other jobs and higher paying jobs and try to progress in the public service. His evidence was ‘some people can’t cope, some people stay, some people do more. I’ve just stayed in my safe little niche and that’s what I felt safe and secure in’.[104] He was asked whether he had looked in the private sector for a position that provided a pension such as the one he will receive on retirement at 55. His response was that he had not looked into that and he repeated that ‘I’ve just felt safe and secure in my little niche and that’s why I’ve just stayed all these years. That’s the honest answer’.[105] Finally, in re-examination he was asked questions as to why he remained working at the Centrelink office in Lilydale. The plaintiff said that he did not want to travel and he wanted to remain close to home because it is safe and secure, and he said ‘I just wanted not to do anything more stressful than what I’m doing’.[106] The plaintiff’s evidence was that he had been at the Lilydale Centrelink office since June 1990, some 27 years.
[104]T 153, LL14-17.
[105]T 155, LL17-19.
[106]T 197, LL1-3.

The plaintiff gave evidence that he suffers from poor sleep habits and gets approximately three to four hours of sleep per night and then wakes and sleeps fitfully for the rest of the night. His evidence was that this was the case since he was abused in 1974. The plaintiff reported these sleep problems to Dr Tagkalidis. Mrs Hand gave evidence that the plaintiff started to sleep with his light on in grade 4.[107]
[107]T 445, LL8-9.

The plaintiff has never sought treatment for his anxiety or the impacts of the abuse. The second defendant submits that the lack of treatment supports the submission that the plaintiff’s symptoms have had minimal effect on his functioning. I reject this submission, particularly in light of the medical evidence given by Dr Tagkalidis and Dr Shan. Dr Tagkalidis gave evidence that the fact that the plaintiff had not sought treatment for his anxiety, nor disclosed the abuse until very recently to his general practitioner, is normal for childhood sex abuse survivors. I do not accept that the plaintiff’s failure to report the abuse or seek treatment are indicators of reduced pain and suffering or indicators that the anxiety has had a minimal effect on his day-to-day functioning.

As a result of the motor vehicle accident, the plaintiff suffered serious physical injuries including a degree of paralysis on his right side. He was in a coma for one to two weeks in the Royal Melbourne Hospital and then rehabilitated in the Royal Talbot for three months. The plaintiff made a full recovery from his physical injuries through exercise and rehabilitation, and by the time he was sent to Glen Waverley for further rehabilitation, he had fully recovered movement in his right arm. As a result of the accident he did not return to school to complete his year 12. The plaintiff accepted that when he joined the public service in 1984, the injuries from the motor vehicle accident still caused a cloud over his fitness to do his job.

The second defendant submits that the cloud over the plaintiff’s work capacity is due to the effects of the motor vehicle accident and not related to the abuse.

There is no evidence before the Court of any ongoing effects of the motor vehicle accident which are relevant to the plaintiff’s generalised anxiety disorder. In late-1982, the plaintiff’s rehabilitation team organised for him to do three months’ work experience at the Commonwealth Employment Service. In early 1983, a further work placement was organised for the plaintiff, at the Department of Social Security, working at what became Centrelink. The plaintiff initially entered Centrelink on probation. He was encouraged to sit for the public service exam by his rehabilitation team and passed it the first time he sat the exam in 1983. The plaintiff made a full recovery from his physical injuries by 23 July 1984 when he was permanently appointed to the public service. He passed a medical examination to achieve permanency.

Mrs Hand strenuously rejected the suggestion that her son had suffered from brain damage in the motor vehicle accident. Her evidence was:

No, well, on the night we went in there the doctors, the surgeons had done a scan and they told us that there was no damage on the scan and they said they would wait till he woke up.
…
He didn’t have any trouble reasoning and he was still able to play - he played his board games and chess, things like that.[108]

She gave evidence that once the plaintiff had recovered from the motor vehicle accident he was ‘pretty much the same as he was before’.[109]

[108]T 458, LL4-7, LL17-19.

[109]T 448, LL12-13.

The plaintiff also vigorously denied that the motor vehicle accident rocked his confidence and left him with any permanent damage:

Speech problems when the accident first happened in 82 and it gradually - yeah by - by the end of 82, my speech was fine. Yes, so I might have been still suffering a few - maybe I’m a bit slower still in 83, memory and concentration was and I might have had trouble at first but it just - and the doctors were amazing how quickly I came through and I was back to 100% by 84, physically and mentally.[110]

[110]T 144, LL6–13.

There was no evidence in the plaintiff’s work performance reviews to suggest that the plaintiff had not made a full recovery or was impacted in any way by the injuries he suffered as a result of the motor vehicle accident. Positive work reviews continued throughout the plaintiff’s working life.

Dr Tagkalidis was of the opinion that the motor vehicle accident was not a contributor to the plaintiff’s mental health problems. He said that the plaintiff did not develop a depression needing treatment post the cycling accident, instead the plaintiff told Dr Tagkalidis that he was ‘sad for several months whilst recovering’.[111] Dr Shan noted that after the accident there may have been symptoms of post-traumatic stress disorder present for some years, but they are not considered to be contributing presently.[112]
[111]T 237, LL5-11.
[112]Exhibit D15, page 6.

Dr Tagkalidis’ evidence was that the abuse irreversibly altered the plaintiff’s developmental trajectory. His evidence was:

These effects altered his life trajectory and affect every aspect of his life, including his vocational performance, family, social and leisure activities. Each of these aspects are significantly affected.[113]

[113]T 214, LL17-21.

According to Dr Tagkalidis, the abuse has contributed 100% to the plaintiff’s current emotional distress and anxiety disorder.[114] He believes that there is no other substantial factor in the plaintiff’s life that contributes to his ongoing emotional worry and distress.[115]
[114]T 214, L8.
[115]T 214, LL10-12.

Dr Tagkalidis diagnosed the plaintiff as suffering from a ‘moderate to severe generalised anxiety disorder’.[116] He considered the moderate to severe rating appropriate due to the plaintiff’s ability to work.[117] Dr Tagkalidis rejected a suggestion that the plaintiff’s psychological reaction to the abuse was at the lower level of the range of responses; he said, ‘lower level seems to minimise what he experiences. I’d say it’s at the very least in a moderate level, at the very least’.[118] Dr Tagkalidis accepted that people who suffer substance abuse or obsessive compulsive disorder are at the more extreme end of the range of responses and their functioning is affected at a higher level.[119]
[116]Exhibit P4, page 7; T 211, L30 – T 212, L1.
[117]T 213, LL16-19.
[118]T 230, LL24-27.
[119]T 230, LL28-30; T 231, LL1-6.

Dr Tagkalidis agreed that personality develops over a lifetime and that it is influenced by a myriad of factors, such as: maturation of the brain, experiences and events, genetics, environment, parents, position within a siblingship, and responsibilities undertaken.[120] However, his evidence was that ‘children’s general personalities are largely formed by around the age of five and six and seven’.[121]
[120]T 225, LL11-13, LL21-22; T 226, LL1-2, LL10-13, L24; T 227, LL1-4.
[121]T 227, L30- T 228, L1.

According to Dr Tagkalidis, the plaintiff’s reaction in withdrawing and isolating himself from other children after the abuse was a ‘very typical reaction’.[122] He said ‘it’s a catastrophic event in childhood that leads to major emotional consequences and turmoil… and children have a very limited repertoire of coping, and the simplest method by which they can cope is to withdraw’.[123] It is common for the consequences to continue in adult life even when the catastrophic event occurs in childhood.[124] Dr Tagkalidis’ experience is that the feelings of shame and isolation ‘never evaporates or goes away’.[125]
[122]T 206, L22; T228, LL25-28.
[123]T 206, LL29-32.
[124]T 207, LL11-13, LL22-23.
[125]T 207, LL15-16.

Dr Tagkalidis said that the plaintiff’s isolation and withdrawal was ‘an immediate thing’ and he had ‘very limited social involvement with other children’.[126] Dr Tagkalidis was taken through the plaintiff’s involvement in secondary school in annual school musical productions and his participation in the school cross-country team, but did not believe this to be contradictory to what the plaintiff communicated to him.[127] Dr Tagkalidis acknowledged that the plaintiff was not purporting to say that he was a ‘hermit’ and remarked that the plaintiff is ‘a very driven, do-good man’ who ‘clearly tries hard to do things that he thinks are helpful and valuable in life’.[128]
[126]T 234, L27- T 235, L1.
[127]T 235, LL10-26.
[128]T 235, L30 – T 236, L2.

Dr Tagkalidis had no doubt that the plaintiff’s feeling of shame and unremitting anxiety was genuine. He told the Court that the plaintiff believes ‘he’s bad in some way, not good enough’. Dr Tagkalidis’ evidence was that this feeling of inferiority and not being good enough is ‘a very common theme’ that children who were abused carry through their lifetime, that in some way they’re ‘responsible, damaged, bad, dirty’.[129] Dr Tagkalidis said the plaintiff suffers from ‘internal emotional distress’, he ‘struggles internally to cope with life’, and experiences ‘social limitations and functional limitations’.[130] The plaintiff told Dr Tagkalidis that he is ‘driven by anxiety’.[131] Dr Tagkalidis understood this to mean ‘a combination of anxiety and fear that he will fail’.[132] He said this has been an ‘underlying theme’ that the plaintiff has had all his life post abuse and his anxiety and fear of failure is going to drive him to keep trying very hard.[133]
[129]T 209, LL15-19.
[130]T 208, L27; T 209, L1; T 211, LL27-28.
[131]T 211, LL8-19; T 244, LL11-12.
[132]T 211, LL12-13.
[133]T 211, LL13-17.

Dr Tagkalidis conceded that factors such as inability to turn up to work without taking excessive amounts of days off; loss of interest in grooming; lack of libido; panic attacks; lack of energy; memory issues and difficulty coping with stressful situations, are present in many people who have suffered sexual abuse, but were not reported by the plaintiff.[134]
[134]T 243, LL26-31; T 244, LL1-17.

Dr Shan stated that the plaintiff has residual anxiety at a heightened level, which is clinically significant and has led to his diagnosis of chronic generalised anxiety disorder.[135] He said that the abuse is the cause of the plaintiff’s anxiety.[136]
[135]T 500, LL15-19; Exhibit D15, page 5.
[136]T 517, LL25-26; Exhibit D15, page 6.

Dr Shan explained the use of the word chronic, being ‘a constant condition that is largely unchanging and…persistently occurring over a lengthy period of time’.[137] Dr Shan opined that the condition is mild to possibly moderate but tending towards mild based on the fact that the plaintiff has managed the condition with his own management techniques such as cycling and swimming.[138]
[137]T 503, LL26-30.
[138]T 500, LL25-30; T 504, LL3-4.

In terms of developmental issues, Dr Shan considered that the abuse has impacted on the plaintiff’s personality development.[139]
[139]T 504, LL8-11.

Dr Shan gave evidence that the likelihood of any treatment improving the plaintiff’s condition is not very great and won’t alleviate his anxiety to the extent that it completely disappears.[140]
[140]T 502, LL26-27; T 508, LL12-13.

Dr Shan noted that the plaintiff felt that he had coped with the effects of the motor vehicle accident and progressed to sit the public service examination.[141] By coping in this way, Dr Shan would ordinarily have assumed that the plaintiff has a ‘strong and resilient personality’ but it was unexpected in the plaintiff’s circumstances, given the previous experiences in school and the consequent psychological detriment. He stated that he would have expected the plaintiff to cope less with this major event in his life.[142]
[141]T 497, LL20-22.
[142]T 497, L27- T 498, L2.

Dr Shan noted that the plaintiff has developed his own ways of managing his anxiety and tendency to catastrophize which enables him to be a husband, parent and hold a job for a lengthy period.[143]
[143]T 518, LL13-17.

Dr Shan does not believe that the plaintiff’s retirement will change his prognosis very much. He notes that the plaintiff’s complaints are ‘almost intrinsic to personality’ and ‘it’s not likely there will be much change’.[144]
[144]T 502, LL9-11.

Assessment of general damages

The second defendant acknowledges and deeply regrets that the plaintiff was abused by the first defendant at a young age. It acknowledges that the plaintiff was adversely affected by the abuse, in particular that he suffered a humiliating, confusing experience on a regular basis throughout his grade 4 year and that he has continued to suffer chronic generalised anxiety since that time. The second defendant submits an award of general damages of no more than $100,000 is fair and reasonable compensation for the plaintiff’s injuries.

The second defendant submits that on the evidence the Court ought find that the plaintiff suffered a generalised anxiety disorder as a result of the abuse by the first defendant but that the disorder is of a mild nature, that it interferes with aspects of his life in a modest way and that it has not and does not prevent the plaintiff living an uneventful, secure life. It is on this basis that the second defendant submits that the award for pain and suffering damages for the injury ought to be modest.

The second defendant submits that in determining the extent of the injuries suffered by the plaintiff, the Court has limited evidence before it and is largely reliant on the subjective evidence of the plaintiff and his subjective reporting of symptoms and causation to the medico-legal experts.

The second defendant submitted that it would be reasonable and appropriate for the Court to consider the decision of Erlich v Leifer[145] (Erlich) as a guide to an assessment of general damages. While the case of Erlich may be helpful, each case in which a plaintiff has suffered abuse and seeks general damages turns on its own facts. In such circumstances, ultimately, a finding as to assessment of damages in one case is not binding on another.
[145][2015] VSC 499.

In issue between the parties is the extent of the plaintiff’s generalised anxiety disorder as to its effect on:

(a) his developmental trajectory;

(b) his day to day functioning, social skills, relationships and coping ability;

(c) his vocational path, both past and future; and

(d) his need for future treatment.

For the reasons I have already set out, I accept the plaintiff’s evidence of the impact of the abuse on his social skills, relationships and coping abilities. In particular, the abuse has had a life-long impact on the plaintiff and its effects were immediate at the age of eight. The abuse was prolonged, gross and public and it had a profoundly damaging effect on the plaintiff’s self-esteem, confidence and relationships with others. It inhibited his work performance and satisfaction and impaired all facets of his general enjoyment of life up to this point in time. The effect of the abuse and the development of a generalised anxiety disorder is chronic and will endure his whole life.[146]
[146]T 220, L28 – T 221, L12; T 502, LL6-27.

While the second defendant endeavoured to make inroads into the plaintiff, Mrs Hand and Ms Ricci’s evidence, for the reasons already set out I consider that the abuse has had a significantly damaging effect on the plaintiff giving rise to an anxiety disorder which is chronic and which permeates his life. I accept Dr Tagkalidis’ categorisation of the generalised anxiety disorder as moderate to severe.

The abuse has insidiously affected all aspects of the plaintiff’s life and taken from him the capacity to derive full enjoyment from the activities of life. This is not a case where the plaintiff has no capacity for enjoyment or cannot form relationships or participate in a range of activities, including employment. He has a good relationship with his children, his mother and he is well regarded and able to work and engage in sporting activities.

However, for reasons I will set out shortly, the plaintiff will have a shortened working life to age 55. He is unlikely to retire and find a new social life or suddenly recover from his generalised anxiety disorder. He has been denied the benefit of the pleasures of being engaged in a workplace and the rewards of employment itself over and above the monetary rewards. He has not been able to enjoy the social network that the workplace can provide or find satisfaction and stimulation that comes with progression and promotion in the workplace. At best, he has created a safe niche in which he can count down the days until his retirement at age 55 years at which time he hopes he will feel less stressed and may find some solace in his garden. The plaintiff’s social relationships have been few and even his relationship with his wife has to some extent been affected by the impact of the abuse on him. The plaintiff’s overwhelming and genuine expressions of distress, inadequacy, poor self-esteem, fears of what those around him are thinking of him and his belief that he is not up to the task were compelling.

The impact of the generalised anxiety disorder including the poor sleep, the feelings of poor self-worth, the belief throughout his childhood that he had done something wrong and was responsible, the inability to have a full and rich social life, to be denied the pleasures associated with employment and the workplace, the inability to disclose the abuse to anybody other than briefly to his mother, the inability to seek treatment for the anxiety and the impacts of the abuse are factors in my assessment of the plaintiff’s general damages.

As I have said, this is not a case where the abuse has stolen everything from the plaintiff in relation to his enjoyment of life. However, the impact of the abuse has been serious, significant, and will endure for the plaintiff’s lifetime. As such, I consider that the plaintiff should be awarded general damages in the sum of $260,000.

Pecuniary loss damages

The second defendant submits that there is no compelling evidence and in particular no medical evidence that the plaintiff has or will have a loss of earning capacity as a result of his generalised anxiety disorder.[147]
[147]Second defendant’s written submissions dated 28 June 2017, [56].

The plaintiff’s case is that:

(a) but for the abuse the plaintiff would nevertheless have entered the public service after the motor vehicle accident in 1982;

(b) the plaintiff has fully exercised his retained working capacity at the level of APS-4 since 2000;

(c) had he not been injured by the abuse the plaintiff would have steadily progressed to at least an EL-1 level in the public service, possibly but not necessarily in Centrelink; and

(d) the plaintiff would have retired at age 54 years 11 months and re-entered the workforce and worked at least to age 65.[148]

[148]Plaintiff’s written submissions dated 28 June 2017, [43].

The plaintiff completed his schooling to year 11. As discussed, the plaintiff did not return to school after the motor vehicle accident. The plaintiff’s evidence was that he was a ‘B grade’ student up until the end of year 11. The plaintiff was feeling good about year 12 and there was no evidence that he had any fixed career objectives prior to his accident in January 1982. There is no evidence that the abuse interfered with the plaintiff’s academic progress and the plaintiff accepts that it was the motor vehicle accident that caused him to leave school.

As discussed, as part of his rehabilitation following the motor vehicle accident, the plaintiff completed work experience and commenced employment with the Commonwealth Public Service as an entry clerical assistant grade 1 in 1984. He has worked for the Commonwealth Public Service and within the Department of Human Services, in particular Centrelink ever since 1984. He is currently in the position of an Administrative Service Officer Level 4 (APS-4). The plaintiff’s progression from his clerical assistant 1 level to APS-1, APS-2, APS-3 and now APS-4 has been by reason of the passage of time.[149] The progression is not on an application, interview, examination or ambition. The plaintiff has never sought, nor obtained career progression since attaining an APS-4 position in 2000.
[149]T 31, LL7–8.

The evidence is that the plaintiff has had 34 years’ continuous service in the Commonwealth Public Service. During this time he has taken limited days off work and he has not had any time off work for any injury related conditions or stress or anxiety. The evidence in relation to the plaintiff’s past and current work capacity is that he is a hard, capable and very conscientious worker, reluctant to take sick days, and is liked and respected by his peers. The plaintiff’s repeated evidence is that he gives 100% to his work and he does his job well.

The plaintiff has worked at the Lilydale Centrelink office since 1990, when the office opened. The Lilydale office sees approximately 300 customers come through the doors each day. The plaintiff’s current position as an APS-4 was described by Ms Howard as essentially an entry level position,[150] involving mostly face to face and process type work in the department. An APS-4 is responsible for dealing with customer inquiries, generally managing customer work and processing customer claims and assessments. The plaintiff supports customers in what was described as a self-service outlet or deals directly with the customer enquiry. Ms Howard described the plaintiff as extremely conscientious and said the plaintiff is quite capable in the APS-4 position and he does his job well.[151]
[150]T 272, LL21–23.
[151]T 265, LL1–4.

The plaintiff has received two or three awards at work over the last 20 years.[152] Exhibit D2 includes the plaintiff’s work appraisals. Without repeating each appraisal, the comments on all of the appraisals were positive and complementary about the level of the plaintiff’s work, his work ethic, his general role in the office and his relationship with colleagues.
[152]T 95, LL11–13.

The plaintiff’s evidence is that he has stayed in the APS-4 role because he could not and will not be able to work at a level higher than APS-4. The plaintiff’s evidence in relation to how he copes with his work in the APS-4 role is that:

It’s things that I’ve learnt over the years. It’s quite safe because I’ve got all my brochures on the social work and I know all the payments and this – and it’s quite simple repetitive work, things I’ve done a lot before. But you do gain skills for dealing with peoples’ personal problems.[153]

[153]T 92, LL25–31.

The plaintiff said a number of times that he remained in his APS-4 role and at the Lilydale Centrelink office because it was ‘safe’ and he had created a ‘safe niche’.[154]
[154]T 108, L23.

The plaintiff’s evidence was that of the twenty or so people with whom he started working at the public service, they progressed to either APS-5 or APS-6 or higher levels still and that they had moved on to different offices.[155]
[155]T 108, LL4–12.

The plaintiff is entitled to take the 54/11 Pension in 2020. He is not compelled to retire. His evidence is that he will take the 54/11 Pension and receive a fortnightly pension until his death. Even if the plaintiff takes the 54/11 Pension, it will not preclude him from re-entering the workforce, including applying for a position within the public service. The plaintiff’s repeated and unshakeable evidence was that although it is an option, he will not re-enter the workforce once he takes the 54/11 Pension. In response to a question in cross-examination that the plaintiff once retired could simply come back and work for the public service for the next 10 to 12 years he said:

Question:And you can work exactly the same job, doing exactly the same work for the next 10, 12 years if you choose to? – If you’re able to, yes. But I won’t be doing that.
Question:And that’s a choice that you’re going to make? – Yes.
Question:And you could also, if you chose to, go and do any other job once you’ve retired? – That’s right. If the abuse hadn’t happened to me, and I hadn’t had that happen in grade 4, I probably would’ve gone to work through to 67, and gone out on a much higher pension, or I could have taken the 54–11 option, and gone into private industry. I’ve got a young family, and work for another 10 or 12 years.
Question:And there will be nothing stopping you, come March 2020 doing exactly that, will there? – There’s nothing stopping me, but I’m not going to do that. I’m not going to do that, I’m going to retire and I’m not going to work anymore. I’ve had enough. I’m burned out. I’m not going to work anymore.
Question:You’re burned out in part, because of what you say is the effects of the abuse on you? – That’s correct.
Question:And you’re also burnt out, I suggest, because of the stressful job you’ve had in the public service? – It all relates back to what happened to me when I was a young boy.
Question:So do you accept that you had a stressful job in the public service? – Yes, but I would have been, if what happened hadn’t happened in grade 4, I would have worked through. I would have been confident, I would have had no problems with working right through to 67 and give my family a greater income and more support. I wouldn’t have done that. I wouldn’t have felt the stress as much. I wouldn’t have felt the anxiety like I do now.
Question:You really don’t know that, do you? – No, I do know that. I would not. I would have worked through. It’s a pie in the sky. I would have worked as hard as I could have, as long as I could have. I wouldn’t have – I feel I am very, very anxious underneath. I don’t deal with things very well. If it hadn’t happened to me then I would have just gone straight through and worked to retirement and got as high up as I can and would have earnt as much money as I could have earned.[156]

[156]T 121, L12 – T 122, L20.

The plaintiff agreed that he never had cause from anything that his employer said to indicate that his job was at risk. However, his evidence repeatedly was that he had feelings that he was not good enough.[157] His evidence was that he puts in 100% and tries his best and that ‘I do what I have to do to keep going’[158] but that he is not confident and has never been confident.[159] The plaintiff agreed that he has coped with a stressful job[160] and that he has had a capacity to work and that he has tried very hard. He agreed that in 34 years he never had a day off for stress related reasons. It was put to the plaintiff that come March 2020 he would still have that same capacity but that he is choosing not to exercise it.[161] His response was:

Because of what’s happened to me, how I feel underneath. I don’t think it would be very good for my health. I would break down. I would not be able to – I’m not planning to ever work again once I hit 55. That’s been my goal for so long. If what happened to me in grade 4 hadn’t happened, I’m sure I could have worked through to 65 or 67 and provided for my family longer and given a home.[162]

The second defendant submits that the plaintiff’s inability to perform a higher role is more a question of ability than lack of confidence.[222] The second defendant submits that the Court should have regard to Ms Howard’s presentation as compared with the manner in which the plaintiff presented in the witness box, in support of a finding that he simply ‘does not have what it takes’ to get to EL-1 level, and that it has nothing to do with any residual anxiety from the abuse. In addition, it is submitted that Ms Howard is university educated, which no doubt has added to her career progression.[223]
[222]Second defendant’s written submissions dated 28 June 2017, [73].
[223]Ibid.

I consider the submission is misconceived. On the one hand the second defendant highlighted the plaintiff’s academic progression until year 11 and that he was able to do so despite the impact of the abuse on him, his ability to sit the entrance exam at 17 years of age after the motor vehicle accident, his impeccable work history and his positive work attributes, but then submits that his failure to progress is more a question of ability to perform a higher role than lack of confidence. Ms Howard’s evidence was that her academic qualifications had nothing to do with her progression. Rather she noted that a desire to progress, capability to do the job and being proactive helps with promotion. The plaintiff does not have a desire to progress, he has not been proactive and according to Ms Howard, he does not have the qualities and capabilities necessary to progress to an APS-5 or beyond because of his anxiety.

Ms Howard presented extremely well in the witness box. She was articulate, clear, direct and knowledgeable about the staff at the Lilydale Centrelink office and the plaintiff. The plaintiff on the other hand presented as a highly anxious individual, beyond what you would expect of any witness giving evidence. However, he was equally articulate, able to answer questions in stressful situations, had generally good recall of past events and gave his evidence in a credible manner. The stark quality I could observe from the witness box which permeated the plaintiff was his anxiety and how it affects most aspects of his life. His anxiety did not abate while giving evidence and that was to my mind one of the significant differences between his presentation and Ms Howard (in the witness box).

The second defendant submits that one of the real reasons the plaintiff has not applied to be promoted is that he would have to move away from the Lilydale office, and he feels comfortable and secure there and enjoys being close to his home and family.

The plaintiff’s evidence was in part that he did not want to move away for the reasons set out. However, he repeatedly gave evidence that he remained at the Lilydale office because it was safe and he had created a safe niche for himself. His evidence that he feels comfortable and secure at the Lilydale office is consistent with an individual suffering from anxiety and fearful of change.

Based on Ms Howard’s evidence, I do not accept the second defendant’s submission that there are work availability barriers which would have prevented the plaintiff from progressing from an APS-4 to an APS-5 or above.

It is submitted that the plaintiff’s desire to remain in the same workplace would have affected his ability to advance particularly in the circumstances where his colleagues that started at the same time have all moved offices in order to advance, while the plaintiff prefers to remain close to home.

For the same reasons that I have already set out, I consider the plaintiff’s failure to apply for a position beyond APS-4 is related to his anxiety which prevents him from seeking promotion. Importantly, his anxiety impedes his ability to perform the tasks required in an APS-5 and higher position.

The second defendant submits that the plaintiff has never applied or even looked into the invalidity pension[224] and that this is further evidence of no true incapacity for work. The plaintiff was challenged about why he had not applied for an invalidity pension on medical grounds. He strongly asserted he would never do that. In closing written submissions on behalf of the plaintiff it was put that the plaintiff had ‘a sense of honour about working despite the great difficulties he faced until 55 when the pension would be rightly his and he would have made his contribution.’[225] The plaintiff’s evidence in this regard was that:

And the way I was brought up was you don’t go out – take the easy option on medical grounds for things and you work, and I’ve always concentrated on making it to 55 and I feel that I’ve worked and done my – achieved what I – my goals in life and then I deserve a pension if I can work to 55.[226]

[224]Second defendant’s written submissions dated 28 June 2017, [74]; T 158, L4 – T 159, L23.

[225]Plaintiff’s written submissions dated 28 June 2017, [76].

[226]T 201, LL22-28.

The plaintiff’s work ethic would have made the plaintiff a prime candidate for promotion but for his injury. The plaintiff’s evidence was clear that he would retire because of the availability of the 54/11 Pension, not one day before and not one day after, and that he would not return to work after retirement because he was burnt out and just could not go past 55.[227]
[227]T 198, LL13-15.

In addition to the plaintiff’s evidence, Ms Howard and Dr Tagkalidis said that the plaintiff would have progressed to a higher level but for the injury, and this is supported by the objective statistical evidence produced by Mr Thompson. As discussed, I accept Mr Thompson’s methodology and the statistical evidence he relied upon.

As discussed, Exhibit P8 demonstrates that a comparison of the two years, 2012 and 2016, suggests that there are more older employees leaving in higher categories. That is, in 2012, 52% of 30 plus years’ service male leavers were EL-1 or above and in 2016, 65% of 30 to 40 years’ service male leavers were EL-1 or above.

The figures in Exhibit P8 suggest that having achieved APS-4 after 34 years in the public service the plaintiff is in the bottom 9.5% of his cohort. The overwhelming evidence before the Court is that the only explanation for that poor result, that is the plaintiff remaining at APS-4 after 34 years in the public service, is as a consequence of the abuse and the anxiety which has caused his limitations.

I accept the plaintiff’s submission that it is inherently and statistically unlikely the plaintiff would be an APS-4 but for his abuse. To that end, Dr Tagkalidis opined that ‘it makes total sense that his emotional hindrances have stopped that (career) progression.’[228]
[228]T 217, LL2-3.

I consider that it is more likely than not that the plaintiff would have achieved an EL-1 level but for his abuse in light of the following evidence:

(a) the plaintiff’s work ethic, lack of sick days, conscientiousness, dedication and intellect;

(b) the plaintiff’s performance reviews;

(c) Ms Howard’s evidence that Centrelink employees can apply for employment in other Commonwealth departments and that all jobs are advertised in the APS Gazette which everyone has access to;

(d) Ms Howard’s evidence that if people aspire to EL-1 positions they get a ‘good opportunity and have a good chance of getting there’;

(e) Dr Tagkalidis’ opinion that the plaintiff’s ‘emotional hindrances’ have stopped his career progression; and

(f) the statistics referred to by Mr Thompson to prepare his reports.

I agree with the plaintiff’s submission that Mr Thompson’s methodology is conservative. In the absence of any evidence to the contrary, I am satisfied that Mr Thompson’s opinion provides objective evidence of the likelihood of male workers in the public service and their career progression and the earnings of a male in the public service at the higher levels of APS-5, APS-6, EL-1 and EL-2 until age 65 and the pension entitlement.

The important aspect of the evidence much of the time in this judgment has been the plaintiff’s evidence about his intention to work until age 67 but for his anxiety. However, perhaps even more compelling are the plaintiff’s circumstances and the support that those circumstances give to the plaintiff’s evidence. The plaintiff is a young man and he will be 55 years of age when he retires. He has two young children and his wife does not work. He said in his evidence that the bills are constantly going up and that he would have wanted to provide a better quality of life for his children. His family’s needs are real and significant and I consider provide significant support to the plaintiff’s subjective evidence that he would have returned to work but for the abuse.

In conclusion, taking into account with all its imperfection the evidence in relation to what the plaintiff has done in the past in relation to his work and what he will do, I consider that the following would have most likely occurred but for the abuse:

(a) the plaintiff would have pursued a career in the public service after his motor vehicle accident;

(b) the plaintiff would have progressed in accordance with the notional career progression as determined by Mr Thompson and set out at paragraph 158 herein;

(c) he would most likely have achieved a level within the public service to EL-1;

(d) the plaintiff would have taken the 54/11 Pension given the financial benefits; and

(e) the plaintiff would have returned to work and earned between 50% and 100% of his pre 54/11 wage.

I accept that the reasons for not returning to work are due to his injuries due to the abuse.

Adopting Mr Thompson’s calculation, if the plaintiff had achieved an EL-1 level and worked to 54/11 and then continued to work until age 65 at 100% of his earnings, his total loss is:

(a) Past loss - $133,345

(b) Future loss of earning capacity - $594,694

(c) Loss of lump sum super entitlement - $57,861

(d) Loss of pension entitlement - $90,120

Conclusion in relation to economic loss

The plaintiff was injured at a very young age. It is important in cases such as this to consider the concept of loss of earning capacity and what was said in Malecv JC Hutton Pty Ltd[229] (Malec). Loss of earning capacity does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an estimation of possibilities, not proof of probabilities.[230]
[229](1990) 169 CLR 638.
[230]State of New South Wales v Moss (2000) 54 NSWLR 536, [71].

There are a number of uncertainties before the Court which must be taken into account in reaching an assessment of damages. It is not certain whether, but for the abuse:

(a) the plaintiff would have remained in the Commonwealth public service until retirement at age 65 without exercising the 54/11 Pension entitlement;

(b) the plaintiff would have exercised his 54/11 Pension entitlement and then re-entered the workforce (either in the public service or in private industry); and

(c) in the event the plaintiff exercised the option at (b), the rate of pay at which the plaintiff would have re-entered the workforce.

The existence of uncertainties is no barrier to the Court making an assessment of loss. The Court commonly deals with uncertainties when assessing future loss.

The High Court in Malec considered:

When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach, but in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjected. But questions as to the future of hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration of proof. If the law is to take 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. The probability may be very high – 99.9 per cent – or very low –0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent, or so high as to be practically certain – 99 per cent – the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded.[231]

[231](1990) 169 CLR 638, 642–3 (Dean, Gaudron and McHugh JJ).

Brendan and Dawson JJ, while agreeing generally with the majority, thought it undesirable to express the evaluation in percentage terms:

Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages found in a hypothetical evaluations defy precise calculations. We should add that we would not favour the use of the term ‘probability’ to describe the possibility of an occurrence where the situation of the possibility is minimal.[232]

[232]Ibid 640 (emphasis added).

At 643 the majority, Dean, Gaudron and McHugh JJ in Malec said relevantly that when the law takes account of future 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 certain. The inquiry – the process of estimation of possibilities – is thus an imprecise and indeterminate one to be carried out with very broad parameters.

In Seltsam Pty Limited v Ghaleb[233] Ipp JA (with whom Mason P agreed) held that Malec required the application of the following principles:
[233][2005] NSWCA 208.

(a) in the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring;

(b) the Court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred;

(c) the Court must form an estimate of the likelihood of the possibility of alleged future events occurring; and

(d) these matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.[234]

[234]Ibid [103].

These principles have been applied in this Court by J Forrest J in Acir v Frosster Pty Ltd[235] and by T Forrest J in Akram Karam v Palmone Shoes Pty Ltd.[236]
[235][2009] VSC 454, [263].
[236][2010] VSC 3, [140].

Accordingly, in a case such as this one where future or hypothetical events are generally not amenable to proof, the Court takes these events into account in the assessment of damages in terms of the degree of probability of their occurrence. Thus, except in extreme cases of mere speculation, or practical certainty, the Court makes an estimate of the likelihood that an event would have occurred in the past or might occur in the future, and adjusts its award of damages accordingly to reflect the degree of probability.

Vicissitudes

The plaintiff submits that any deduction for vicissitudes needs to be separated between the vicissitudes relating to future loss of income and future loss of superannuation.[237] It is submitted that the vicissitudes relating to superannuation are negligible given that the superannuation is a Commonwealth based fund and the retirement at 2020 is imminent and the plaintiff has significant sick leave accumulated to cover any adverse outcome between now and 2020.
[237]Plaintiff’s written submissions dated 28 June 2017, [122].

The plaintiff submits that the only component that should attract a vicissitudes adjustment is the earnings from age 55 to 65. It is submitted that given the plaintiff’s good physical health and that it is a finite period the deduction for vicissitudes on future loss of earnings should be 5%, being one third of the normal vicissitudes allowance.

The second defendant submits that Mr Thompson’s calculations did not provide for vicissitudes and that it is appropriate to allow 15% in the circumstances of this case.

I accept Mr Thompson’s evidence that the application of vicissitudes to the plaintiff’s future superannuation is not appropriate in relation to the future loss of superannuation.

While I accept that the relevant period is finite, that is from age 55 to 65 and that to date the plaintiff’s physical health has not been in issue, as in any case, there are many vagaries and in particular, the calculation is based on the plaintiff returning to work at age 55. There needs to be an allowance for ranges in job market, the plaintiff’s re-entry into the workforce after taking the 54/11 Pension and the realities of continuous work being available in that period and the fact that the plaintiff will be getting older and may in fact, as with anybody, be susceptible to medical conditions.

Assessment of past economic loss

The Malec principles must be applied in resolving the hypothetical question of what income the plaintiff would have earned until 28 June 2017 if the abuse had not occurred. Having regard to the conclusions as set out at paragraph 219 above, it is appropriate to provide for a discount of 25% to Mr Thompson’s calculations as set out in paragraph 221 above. It follows that with some rounding off I assess the plaintiff’s loss of past earnings at $100,000. I do not consider that any further reduction should be made for the ordinary vicissitudes of life.

Assessment of future loss of earning capacity

I consider $742,675 (being Mr Thompson’s calculation of the plaintiff’s future loss of earnings, superannuation and pension entitlements at paragraph 221) should be accepted as the starting point for calculations.

I consider that it is appropriate to apply a discount of 5% reduction to take into account vicissitudes such as the non-availability of work, whether at the Commonwealth public service when the plaintiff retires at 54/11 should be applied only to the plaintiff’s future loss of earning capacity, that is to the $594,694 component of the calculation. As such, that figure is reduced by 5%.

The conclusions as set out at paragraph 219 above and the Malec principles warrant a discount or allowance to be made for a range of possible eventualities independent of the abuse related injury which would have either terminated or restricted the plaintiff’s ability to earn an income. In my view, an appropriate discount to the calculation of future loss (being loss of earning capacity, pension and superannuation) is in the order of 55%.

Future medical expenses

I consider that the plaintiff is also entitled to the costs of future psychological treatment. The plaintiff’s evidence was that he wanted to seek treatment for his psychiatric injury and he mentioned this to his general practitioner but he preferred to wait until his court case was over. The plaintiff’s evidence was that he had not sought treatment himself because he was worried about the costs.[238]
[238]T 185, LL16-21; T 186, LL8-9.

The plaintiff’s evidence was that he wanted to consider having treatment because both the medico-legal experts told him that he should have it and that he needed it.[239] The plaintiff also considered it would really help him.[240]
[239]T 186, LL4–7.
[240]T 50, LL24-28.

Dr Tagkalidis was of the opinion that any benefit from any future medical treatment would be limited but recommended that the plaintiff have regular sessions with a psychologist for two to three years. Dr Shan was of the opinion that while it is unlikely that treatment would alter things much, the plaintiff might learn some more strategies to manage his symptoms.[241]
[241]T 508, LL7-9.

I note that Dr Shan suggested that the plaintiff may require up to 200 sessions with a psychologist or a psychiatrist[242] which is contrasted to Dr Tagkalidis’ recommendation of 2 to 3 years of weekly sessions with a psychologist,[243] that is approximately 150 sessions.
[242]T 507, LL13-15; Exhibit D15, page 6.
[243]Exhibit P4, page 8.

The psychological treatment that the plaintiff will require is estimated to cost $250 per session at one session per week. Accordingly, the relevant multiplier for three years is 145.6 (applying a 5% discount rate) and the estimated cost for future psychological treatment is $36,400.

Conclusion

Undertaking a scientific, mathematical and precise computation of figures is fraught with difficulty. As such, applying the Malec principles and rounding off figures, I will allow the following special damages:

(a) Past pecuniary loss at a total of $100,000;

(b) Future pecuniary loss at a total of $320,000; and

(c) Future medical expenses at a total of $36,400.

Rounding off figures, I propose to give judgment in favour of the plaintiff in the amount of $717,000 comprising $260,000 for pain and suffering damages and $457,000 for pecuniary damages and future medical expenses. I will hear from counsel on the precise form of order and in relation to interest and costs.

[2017] VSC 437

11 August 2017