Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers
[2020] WADC 27
•11 MARCH 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: LAWRENCE -v- PROVINCE LEADER OF THE OCEANIA PROVINCE OF THE CONGREGATION OF THE CHRISTIAN BROTHERS [2020] WADC 27
CORAM: HERRON DCJ
HEARD: 21 JANUARY - 7 FEBRUARY 2020
DELIVERED : 11 MARCH 2020
FILE NO/S: CIV 707 of 2019
BETWEEN: JOHN THOMAS LAWRENCE
Plaintiff
AND
PROVINCE LEADER OF THE OCEANIA PROVINCE OF THE CONGREGATION OF THE CHRISTIAN BROTHERS
Defendant
THE COMMONWEALTH OF AUSTRALIA
First Third Party
THE STATE OF WESTERN AUSTRALIA
Second Third Party
Catchwords:
Damages - Psychiatric injury - Historical institutional child sexual abuse cause of action - Section 6A Limitation Act 2005 (WA) - Section 15A Civil Liability Act 2002 (WA) - Definition of 'child sexual abuse' - Loss of past earning capacity - Malec v JC Hutton Pty Ltd - Pre-judgment interest s 32 Supreme Court Act 1935 (WA) - Exemplary damages - Aggravated damages
Legislation:
Child Welfare Act 1947 (WA), sch 2, s 4, s 15
Child Welfare Regulations 1934 (WA), reg 4, reg 6, reg 6A, reg 7, reg 9, reg 10, reg 32
Children and Community Services Act (WA), s 124A
Civil Judgment Enforcement Act 2004 (WA), s 8, s 8(1)(a)
Civil Judgment Enforcement Regulations 2005 (WA), reg 4(1)
Civil Liability Act 2002 (WA), pt 2A, s 3A, s 10A, s 15A, s 15B, s 15B(1), s 15B(1)(b), s 15B(1)(c), s 15B(1)(d), s 15B(1)(e), s 15B(1)(f), s 15B(4), s 15B(5), s 15D(3), s 15F, s 15I, s 15K
Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017 (WA)
Immigration (Guardianship of Children) Act 1946 (Cth), s 4, s 5, s 6, s 7
Interpretation Act 1984 (WA), s 18, s 19, s 19(2)(e), s 19(2)(f), s 19(3)
Law Reform (Miscellaneous Provisions) Act 1941 (WA), s 4
Limitation Act 2005 (WA), s 6, s 6A(1), s 6A(2), s 6A(5), s 6A(6)
Rules of the Supreme Court 1971 (WA), O 36 r 20
Superannuation Guarantee Administration Act 1992 (Cth)
Supreme Court Act 1935 (WA), s 32
Result:
Plaintiff awarded damages
Representation:
Counsel:
| Plaintiff | : | Mr T J Hammond. [Mr M Howard SC appeared on pre-judgment interest on 5 February 2020.] |
| Defendant | : | Ms B A Mangan and Ms A Liscia. [Mr S K Dharmananda SC appeared on pre-judgment interest on 5 February 2020.] |
| First Third Party | : | No appearance (relied on written submissions) |
| Second Third Party | : | Ms C J Thatcher SC appeared on pre-judgment interest on 5 February 2020 |
Solicitors:
| Plaintiff | : | Rightside Legal |
| Defendant | : | Irdi Legal |
| First Third Party | : | Australian Government Solicitor |
| Second Third Party | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Amaca Pty Ltd v Latz [2017] SASCFC 145
Australian National Airlines Commission v Commonwealth of Australia (1975) 6 ALR 433
Backwell v AAA [1997] 1 VR 182
Birch v The State of Western Australia [2017] WASCA 19 (2017) 51 WAR 454
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte [1990] A Tort Rep 81-043
Brasser v Graham & Graham [1985] WAR 180
Cardno BSD Pty Ltd v Water Corporation (No 2) [2011] WASCA 161
Chappel v Hart (1998) 195 CLR 232
City of Kwinana v Lamont [2014] WASCA 112
Clybucca Holdings Pty Ltd v Hill [1984] WAR 44
Cullen v Trappell (1980) 146 CLR 1
Department of Health and Human Services v County Court of Victoria [2018] VSC 322
Erlich v Leifer [2015] VSC 499
Foyster v Goynich (No 2) [1984] WAR 91
Gevsvach v Gevsvach [2018] NSWSC 1685
Graham v Baker (1961) 106 CLR 340
Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1
Gummow v Callaghan (Unreported, WASC, Library No 5374, 25 May 1984)
Haines v Bendall (1991) 172 CLR 60
Hand v Morris [2017] VSC 437
Harper v Phillips [1985] WAR 100
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Jongen v CSR Ltd [1992] Aust Tort Reports 81-192
Lamb v Cotogno (1987) 164 CLR 1
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Maxwell v Murphy (1957) 96 CLR 261
MC v Morris [2019] NSWSC 1326
McQuillan v J F Thomson (WA) Pty Ltd [1984] WAR 258
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Nella v Kingia Pty Ltd [1989] FCA 142
Pavich v Bobra Nominees Pty Ltd (1988) 84 ALR 285; [1988] FCA 378
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Purkess v Crittenden (1965) 114 CLR 164
Redding v Lee (1983) 151 CLR 117
Reynolds v The State of Western Australia (No 2) [2013] WADC 176
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Shorey v PT Limited [2003] HCA 27; (2003) 77 ALJR 1104
Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322
Struthers v Harris [1983] WAR 123
TB v State of New South Wales; DC v State of New South Wales [2015] NSWSC 575
The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569
The State of Western Australia v Watson [1990] WAR 248
Thompson v Faraonio (1979) 54 ALJR 231
Van Gervan v Fenton (1992) 175 CLR 327
Villasevil v Pickering (2001) 24 WAR 167
VIM v The State of Western Australia (2005) 31 WAR 1
Warramunda Village Inc v Pryde [2002] FCAFC 58; [2002] FCA 250
Watts v Rake (1960) 108 CLR 158
Watts v Turpin [1999] WASCA 216; (1999) 21 WAR 402
Wilson v Peisley (1975) 50 ALJR 207
Table of Contents
Introduction
Liability admitted
Legal basis of the action
Effect of death on cause of action
The pleadings
The issues - what is in dispute
Background - child migration scheme
Christian Brothers
Passage of time
'Sexual abuse' - the meaning of
Some definitions of 'child sexual abuse'
Plaintiff - John Thomas Lawrence
Credibility and reliability
England - 1944 - 1952
Mr Lawrence travels to Western Australia aged 8 - 1954
Clontarf - 1952 - 1953
Castledare - 1953
Brother Murphy
Clontarf - 1954
Brother Marques
Brother Angus
Mr Jackson
Mr Blackmore
Brother Foley
Brother Doyle
Life at Clontarf and Castledare
Bus accident
Findings
Brother Doyle - caning
Corroborating evidence
AB
CD
Paul Vincent Bradshaw
Christopher Emanuel White
Royal Commission Report evidence
Whether the meaning of 'sexual abuse' includes physical abuse and maltreatment
Mr Lawrence's symptoms
Leaving Clontarf
Life after Clontarf
Mr Lawrence raped by a farmer
Mr Lawrence's work history - receives an invalid/disability support pension
Marriage
Current symptoms
Mr Lawrence's recorded psychiatric medical history
1975
1976
1977
1978
1979
1980
1984
1986
1989
1994
1995
1996
1997
1998
1999
2000
2003
2004
2005
2006
2006 - 2008
2010
2014 - 2015
2016 - 2017
2018
2019 - 2020
Gap in the evidence between 1980 - 1994
Mr Lawrence's recorded physical medical history
Back injury and surgery
Mr Lawrence's applications for invalid/disability support pension
Dr David Oliver Watson
Expert psychiatric evidence
Dr Daniel Shub
Dr Shub's diagnosis of Post-Traumatic Stress Disorder and Major Depressive Disorder
Dr Shub's opinion as to the cause of Mr Lawrence's psychiatric condition
Dr Shub's opinion regarding the impact of the psychiatric conditions on Mr Lawrence's life
Dr Shub's opinion regarding the significance of Mr Lawrence's early childhood in England and other adverse life events
Dr Helena Piirto
Findings
General damages - comparable cases
Conclusion from the authorities
General damages - assessment
Loss of earning capacity
The basis of the claim for loss of earning capacity
The evidence as to economic loss
Mark David Thompson
Loss of earning capacity - the law
Assessment of damages for loss of earning capacity
Loss from 1962 to 1990 - ages 18 - 45
Loss from 1 July 1990 - 30 June 2010
Loss of superannuation entitlements
Pre-judgment interest - s 32 of the Supreme Court Act 1935
The submissions
The amending legislation
Section 32 of the Supreme Court Act 1935
Limitation Act 2005 and Civil Liability Act 2002 amendments
Western Australia Supreme Court and Full Court of the Supreme Court authorities regarding construction of s 32 of the SCA
Foyster v Goynich (No 2) [1984] WAR 91
McQuillan v J F Thomson (WA) Pty Ltd [1984] WAR 253
Harper v Phillips [1985] WAR 100
Brasser v Graham & Graham [1985] WAR 180
Clybucca Holdings Pty Ltd v Hill [1984] WAR 44
New South Wales equivalent statutorial provision
Simonius Vischer & Co v Holt [1979] 2 NSWLR 322
Two Federal Court decisions
Exercise of discretion
Interest calculations
Calculation of pre-judgment interest
1962 to 1990
1990 to 2020
Superannuation - 1993 to 2020
Total interest
1962 to 1990
1990 to 2010
2010 to 2020
Superannuation - 1993 to 2020
Total interest
Future medical expenses
Future personal and domestic assistance
Special damages
Exemplary damages
The factual basis upon which exemplary damages are claimed
History of child abuse allegations
Visitation reports of Clontarf while Mr Lawrence was a resident
Post-1960
Brother Coldrey's report - 11 March 1992
AB's reporting of sexual abuse to the Christian Brothers
The Christian Brothers' submissions regarding exemplary damages
The law - exemplary damages
Conclusion
Aggravated damages
Conclusion
HERRON DCJ:
Introduction
In 1952, when he was aged 8 years, the plaintiff, John Thomas Lawrence (Mr Lawrence), together with other young boys of a similar age, was transported by ship from England to Western Australia as a child migrant. Upon his arrival at Fremantle he was taken to an orphanage or a boys' home known as St Vincent's Orphanage Clontarf (Clontarf) operated by the Christian Brothers. Except for a period of 12 months when he was aged 9, when he lived at the Castledare Junior Orphanage (Castledare), also operated by the Christian Brothers, he remained resident at Clontarf, for the next eight years of his life, until, at the age of 16 years, he was told to leave Clontarf. During that eight years, Mr Lawrence was repeatedly subjected to various forms of sexual abuse, including anal rape, by the Brothers and by others including a teacher, working at Clontarf and Castledare. Mr Lawrence was also subjected to associated physical abuse, cruelty, intimidation, humiliation, degradation and neglect.
By reason of being sexually abused while he was a child living at Clontarf and Castledare, Mr Lawrence claims he has suffered psychiatric injury which has impacted upon all aspects of his life including his ability to work and earn an income. He claims damages for the psychiatric injury caused by his sexual abuse as a child.
Mr Lawrence also claims exemplary and aggravated damages.
The Christian Brothers admit liability for the claim for damages but dispute the quantum of the claim. Therefore I am only required to assess the quantum of Mr Lawrence's claim for damages.
For the reasons which follow I award damages to Mr Lawrence as follows:
1. General damages $400,000 2. Loss of earnings (including loss of superannuation benefits) $620,000 3. Interest on past loss (s 32 of the Supreme Court Act) $400,000 4. Future medical expenses $5,000 5. Future medication expenses $1,000 6. Special damages (as agreed): Past gratuitous care and assistance $5,000 (including interest) Past special damages $7,500 (including interest) Past travel $2,000 (including interest) Sub-total: $1,440,500 Less $111,000 (agreed deduction pursuant to s 15K of the CLA) Total: $1,329,500
Liability admitted
Until the first day of the trial on 21 January, the defendant (the Christian Brothers) denied liability for Mr Lawrence's claim for damages. During counsel for Mr Lawrence's opening address I was informed that by an open letter dated 20 January 2020, the Christian Brothers admitted certain allegations of sexual abuse against them.[1] Counsel for the Christian Brothers later confirmed that liability was admitted and the trial would proceed as an assessment of damages.[2] On 3 February 2020 the Christian Brothers filed an amended defence formally admitting liability.
[1] ts 17 - this letter was mistakenly dated and referred to as 20 January 2019.
[2] ts 38.
Legal basis of the action
This action is able to be brought against the Christian Brothers because of recent amendments to the Limitation Act 2005 (WA) and the Civil Liability Act 2002 (WA) (CLA) which came into effect on 1 July 2018. The action is brought pursuant to pt 2A of the CLA.
Section 6A(2) of the Limitation Act makes special provision for child sexual abuse actions by removing the limitation period.
By s 3A of the CLA, item 1 of the table, the only section of the CLA which applies to the assessment of damages is s 10A, which permits the court, if it wishes to do so, to refer to earlier decisions of this court or other courts for the purposes of establishing the appropriate award for non-pecuniary loss. Accordingly, Mr Lawrence's claim for damages is to be assessed having regard to normal common law principles without regard to the restrictions and limitations imposed by the CLA.
Pursuant to s 15A of the CLA:
child sexual abuse has the meaning given in the Limitation Act 2005 section 6A(1);
child sexual abuse action has the meaning given in the Limitation Act 2005 section 6A(1);
child sexual abuse cause of action has the meaning given in the Limitation Act 2005 section 6A(1);
institution means an entity (other than the Crown), organised for some purpose or work, that exercises or exercised care, supervision or authority over children, whether as part of its primary functions or activities or otherwise.
Pursuant to s 6A of the Limitation Act:
child sexual abuse, of a person, means an act or omission in relation to the person, when the person is a child, that is sexual abuse;
child sexual abuse action means an action on a child sexual abuse cause of action;
child sexual abuse cause of action means a cause of action that relates, directly or indirectly, to a personal injury of the person to whom the cause of action accrues, where the injury results from child sexual abuse of the person.
Clontarf and Castledare are institutions defined in s 15A for the purpose of s 15B of the CLA and at all material times exercised care, supervision or authority over children including Mr Lawrence.[3]
[3] Further amended statement of claim dated 28 January 2020, par 4; Amended defence dated 3 February 2020, par 5.
By s 15B(1) Mr Lawrence is:
(a)a person who was subjected to child sexual abuse by a person associated with an institution;
(b)has, or had, a child sexual abuse cause of action against the holder of an office of authority in the Christian Brothers founded on the responsibility of the office holder for Christian Brothers;
(c)at the time the cause of action accrued (when the sexual abuse occurred):
(i)the Christian Brothers exercised care, supervision or authority over him as a child; and
(ii)the Christian Brothers was not incorporated;
(iii)the Christian Brothers is not currently incorporated;
(iiii)the office holder at the time the cause of action accrued no longer holds the office; and
(v)Mr Lawrence would be able to maintain an action on the cause of action if the office holder continued to hold the office.
By s 15B(3) to s 15B(5):
(3)Any liability that the office holder would have had in relation to the cause of action is taken to be held by the current office holder.
(4)This section applies -
(a)regardless of when the act or omission that constitutes the child sexual abuse occurred; and
(b)regardless of when the cause of action accrued.
(5)If the current office holder has a liability in relation to a cause of action in tort because of subsection (3), the current office holder is taken to be a tortfeasor, for the purposes of the Law Reform (Contributory Negligence and Tortfeasors' Contribution)Act 1947 section 7, in respect of damage suffered as a result of the tort.
By s 15F:
(1)For the purposes of sections 15B, 15D and 15H(4)(a), it is sufficient that an institution (as it is currently) is substantially the same as it was at the time when the cause of action accrued (the relevant time).
(2)Without limiting the generality of subsection (1), an institution (as it is currently) is substantially the same as it was at the relevant time if the class or type of member and the primary purposes or work of the institution (as it is currently) are substantially the same as they were at the relevant time.
(3)Subsections (1) and (2) have effect regardless of whether, after the relevant time -
(a)the name of the institution changed;
(b)the organisational structure of the institution changed;
(c)the institution became incorporated;
(d)the geographic area in which the members of the institution carried out the purposes or work of the institution changed.
Also by s 15I:
For the purposes of this Division, if a child sexual abuse cause of action does not accrue at the time of the act or omission giving rise to the cause of action, the cause of action is taken to have accrued at the time of the act or omission, despite any written or other law.
Effect of death on cause of action
Despite the limitation period having been removed for child sexual abuse actions, the action does not survive the death of the claimant, that is, the person who has been sexually abused. By s 6A(6) of the Limitation Act a child sexual abuse cause of action does not include a cause of action which is able to be maintained only because of the provisions of the Fatal Accidents Act 1959 (WA) or the Law Reform (Miscellaneous Provisions) Act 1941 (WA). By s 4 of the Law Reform (Miscellaneous Provisions) Act (relevantly), except for a claim for general damages for pain and suffering and loss of amenities, and a claim for exemplary damages, on the death of any person the cause of action survives for the benefit of his estate. Therefore, although the limitation period has been removed for sexual abuse causes of action, the cause of action does not survive the death of the claimant.
This action has been expedited, partly no doubt because of the effect of s 6A(6) of the Limitation Act, and also because of medical conditions suffered by Mr Lawrence which adversely impact upon his life expectancy. There is therefore some urgency in delivering these reasons for decision.
The pleadings
By par 12 and par 13 of his further amended statement of claim (Statement of Claim), Mr Lawrence particularises he was sexually abused as follows:
12.At Castledare and then Clontarf, starting in 1953 or 1954, the Plaintiff was sexually abused and sexually assaulted by Brother Murphy ('the sexual abuse by Brother Murphy').
PARTICULARS OF THE SEXUAL ABUSE BY BROTHER MURPHY
a.The sexual abuse experienced by the Plaintiff began in 1953 or 1954 and continued until about 1957 and included many instances of anal rape.
b.The first rape occurred after the Plaintiff had been at Castledare about one month and was about nine‑years‑old. After the Plaintiff wet his bed, Murphy took the Plaintiff by his hand to Murphy's room, and ordered the Plaintiff to take off his clothes and lie on his back. Murphy then lay on the Plaintiff, pressed and rubbed his genitals against the Plaintiff's genitals and then forced the Plaintiff to roll onto his stomach. Murphy then repeatedly inserted his finger into the Plaintiff's anus and then anally raped the Plaintiff. When the Plaintiff cried and screamed Murphy told him he would belt him with the strap if he did not remain quiet.
c.Murphy raped the Plaintiff in this fashion about six times at Castledare.
d.During the Plaintiff's time at Castledare, Murphy regularly came to the Plaintiff's bed and put his hand under the covers and rubbed and fondled the Plaintiff's penis.
e.Murphy also molested the Plaintiff at Clontarf during 1955 or 1956. Murphy was in charge of the Plaintiff's dormitory and regularly came to the Plaintiff's bed and put his hand under the covers and rubbed and fondled the Plaintiff's penis.
f.At Clontarf is 1955 or 1956 Murphy also regularly took the Plaintiff to Murphy's room and fondled and rubbed the Plaintiff's penis and anus. On about eight occasions Murphy repeatedly inserted his finger into the Plaintiff's anus before anally raping the Plaintiff.
g.The sexual abuse included three incidents particularised in the criminal prosecution of Brother Murphy on dates unknown between:
i.8 February 1955 and 10 February 1955, being one count of unlawfully and indecently dealing with the Plaintiff;
ii.8 February 1955 and 1 January 1957 being one count of carnal knowledge of the Plaintiff; and
iii.8 February 1955 and 1 January 1957 being one count of unlawfully and indecently dealing of the Plaintiff.
13.At the Orphanages, starting in 1952, the Plaintiff was sexually abused and sexually assaulted by other Christian Brothers.
PARTICULARS OF THE OTHER SEXUAL ABUSE
a.Brother Marques sexually abused the Plaintiff for several years at Clontarf between 1955 and 1960.
b.On many occasions, in Marques' room and in the chook shed and in the milk yard, Brother Marques fondled and rubbed the Plaintiff's penis and anus.
c.When in Marques' room, Marques would hold the Plaintiff's hands with one of his hands behind the Plaintiff's back. Using his other hand, Marques would rub and fondle the Plaintiff's anus and penis.
d.On multiple occasions, Brother Marques molested the Plaintiff while watching movies. Brother Marques would run and fondle the Plaintiff's penis while the room was dark.
e.An older working boy named Blackmore sexually abused the Plaintiff in 1952 at Clontarf, the first sexual assault suffered by the Plaintiff. Blackmore took the Plaintiff to the chicken yard and forced the Plaintiff to suck Blackmore's penis which culminated in Blackmore urinating in the Plaintiff's mouth. Blackmore then left to attend mass, leaving the Plaintiff shocked and crying in the chicken yard. The Plaintiff was eight-years-old and had been at Clontarf about three weeks.
f.Brother Angus sexually abused the Plaintiff over several years at Clontarf between 1955 and 1960.
(emphasis added)
g.On about 30 occasions Brother Angus took the Plaintiff to his room, forced the Plaintiff to take all his clothes off and then fondled the Plaintiff's penis and anus.
h.Brother Angus also frequently fondled the Plaintiff's penis in a garage near the milk yards and in the truck while picking up slop for the pigs.
i.School Teacher Mr Jackson who lived at Clontarf sexually abused the Plaintiff. On about four occasions, Jackson took the Plaintiff to his room, made him put on a dress and lipstick and then fondled and rubbed the Plaintiff's penis and anus, and on two occasions performed oral sex on the Plaintiff.
(emphasis added)
j.On one occasion at Clontarf, then the Plaintiff was about 12, Brother Foley took the Plaintiff to the gym and then made the Plaintiff lift weights while naked with Brother Foley watching.
(emphasis added)
k.Whilst at Clontarf, in between 1955 and 1960 Brother Doyle would call the Plaintiff to his office, strip the Plaintiff naked from the waist down, questioned the Plaintiff about whether he had been engaged in sexual activity with other students, and then beat the Plaintiff across his bare backside with a cane whilst rubbing his bare hands on the Plaintiff's bare backside ('the Brother Doyle incident') The Brother Doyle incident occurred about once a fortnight from about 1955 to about 1960.
(emphasis added)
By pars 12 and 13 of its amended defence, the Christian Brothers plead:
12.As to the allegations in paragraph 12 of the statement of claim, the defendant:
12.1.admits the allegations in particulars (b), (c), (d), (e), and (g);
12.2.admits that at Clontarf in 1995 [sic 1955] or 1956 Murphy also regularly took the plaintiff to Murphy's room and fondled and rubbed the plaintiff's penis and anus, but otherwise does not admit the allegations in particular (f);
12.3.otherwise does not admit the allegations in paragraph 12.
13.As to the allegations in paragraph 13 of the statement of claim, the defendant:
13.1.admits the allegations in particulars (b) to (e) and (i);
13.2.does not admit the frequency of the conduct alleged in particular (g);
13.3.denies the conduct described in particulars (j) and (k) was child sexual abuse; and
13.4.otherwise does not admit the allegations in paragraph 13.
Therefore, by its amended defence the Christian Brothers essentially admit the pleaded allegations regarding the nature of the sexual abuse perpetrated by Brother Murphy upon Mr Lawrence. The Christian Brothers admit Brother Murphy raped Mr Lawrence about six times at Castledare. Although the Christian Brothers admit that Brother Murphy regularly took Mr Lawrence into Murphy's room and fondled and rubbed Mr Lawrence's penis and anus, they do not admit that Brother Murphy repeatedly inserted his finger into Mr Lawrence's anus before anally raping him. Nor do the Christian Brothers admit the sexual abuse occurred from about 1953 or 1954 until 1957, or that it included many instances of anal rape.
The Christian Brothers, while not admitting Brother Marques sexually abused Mr Lawrence for several years at Clontarf between 1955 and 1960, admit that on many occasions Brother Marques fondled and rubbed Mr Lawrence's penis and anus in various locations. They also admit a working boy, Blackmore, sexually abused Mr Lawrence once about three weeks after Mr Lawrence had arrived at Clontarf. The Christian Brothers admit Brother Angus sexually abused Mr Lawrence over several years at Clontarf between 1955 and 1960, but do not admit the nature and frequency of the abuse. The sexual abuse perpetrated by the school teacher, Mr Jackson, on two occasions is admitted.
The Christian Brothers do not admit an incident involving Brother Foley in the gym when he directed Mr Lawrence to lift weights while naked occurred, but say that if that incident did occur it is not child sexual abuse.
Further, the Christian Brothers do not admit Brother Doyle caned Mr Lawrence on his bare bottom while rubbing his hand on Mr Lawrence's bottom and further say that if that activity did occur, it does not constitute child sexual abuse.
The Christian Brothers also admit they had responsibility for, and were the custodian of the boys at the orphanages, and were required to comply with the provisions of the Child Welfare Act 1947 (WA) (CWA) and the Child Welfare Regulations 1934 (WA) (CWR). It is admitted the Brothers were subject to direction, control and supervision of the Christian Brothers.[4]
[4] Amended defence, pars 5 - 7.
The Christian Brothers admit Mr Lawrence was placed in their custody at Clontarf from approximately 1953 until 1954, and then from 1955 to 1960, and at Castledare in 1954 to 1955, and that during those periods, Mr Lawrence's supervision was entrusted to the Brothers.[5]
[5] Amended defence, pars 8 - 11.
The Christian Brothers also admit that as at January 1957, they had, over a period of approximately 38 years, received reports from time to time relating to allegations of sexual abuse directed against Brothers who were members of the Christian Brothers at both Clontarf and Castledare and also at other institutions in Australia operated by the Christian Brothers. It is further admitted that the relevant office holder of the Christian Brothers ought to have known at the time Mr Lawrence was a resident at Clontarf and Castledare there was a reasonably foreseeable risk of sexual abuse being committed against boys who were resident at Clontarf and Castledare.[6]
[6] Amended defence, par 14.
The Christian Brothers further admit that during the period Mr Lawrence was resident at Clontarf and Castledare:[7]
[7] Amended defence, pars 16 - 18.
(a)the relevant office holder had an understanding that sexual abuse of children can have an ongoing impact on the children so abused;
(b)sexual abuse of children was viewed as a moral lapse or weakness on the part of those responsible for such abuse;
(c)that such behaviour had a tendency to reassert itself;
(d)the relevant office holder had an understanding that the systems and protocols of the Christian Brothers may be inadequate in circumstances where a Brother was in fact an abuser of children;
(e)Mr Lawrence was a vulnerable person given his youthful age and lack of parental contact and support, and the relevant office holder was obliged to exercise reasonable care to protect him from a reasonably foreseeable risk of sexual abuse;
(f)Brother Murphy was among the Clontarf Brothers from 1955 to 1956 and the Castledare Brothers from 1952 to 1954;
(g)Brother Angus was amongst the Clontarf Brothers from 1957 to 1960;
(h)Brother Marques was among the Clontarf Brothers in 1960 and among the Castledare Brothers from 1956 to 1959;
(i)Brother Foley was among the Clontarf Brothers from 1954 to 1958 and among the Castledare Brothers from 1959 to 1960;
(j)Brother Doyle was among the Clontarf Brothers from 1954 to 1960.
The pleaded admissions seem to reflect the findings of the Royal Commission[8] as detailed in its report, specifically finding 8.[9]
[8] Exhibit 24.22, Royal Commission into Institutional Responses to Child Sexual Abuse: Report of case study No. 11 - Congregation of Christian Brothers in Western Australia response to child sexual abuse at Castledare Junior Orphanage, St Vincent's Orphanage Clontarf, St Mary's Agricultural School Tardun and Bindoon Farm School, (Royal Commission Report) December 2014.
[9] Exhibit 24.22, page 523.
By par 27 of its amended defence the Christian Brothers plead Mr Lawrence also experienced injury and trauma that was not caused by child sexual abuse committed by the Christian Brothers:
PARTICULARS OF INJURY & TRAUMA
THAT WAS NOT CHILD SEXUAL ABUSE
27.1.The plaintiff was subjected to emotional trauma arising from rejection abandonment and physical and emotional abuse by his mother and separation from his family (including his mother) when he was placed into institutional care in the United Kingdom.
27.2.Whilst in institutional care in the United Kingdom the plaintiff was, at the age of 6 years, subjected to sexual abuse.
27.3.The plaintiff observed other boys being subjected to violence by individual Christian Brothers, such violence being unrelated to sexual abuse.
27.4.The plaintiff was subjected to physical and verbal abuse by individual Christian Brothers whilst at Clontarf and Castledare, such being unrelated to sexual abuse.
27.5.The plaintiff was subjected to physical and emotional trauma arising from being involved in a bus accident, which also resulted in the death of one boy and number of other boys being seriously injured.
27.6.The plaintiff was subjected to sexual abuse by a farmer for whom he worked and by one of the farmer's employees.
27.7.In or around 1961 after he left the Christian Brothers' care, the plaintiff was subjected to sexual abuse committed by Michael O'Rooke.
27.8.The plaintiff experienced psychological trauma resulting for a number of separations from his wife, primarily in or about 1984 and 1998.
27.9.The plaintiff suffered from various medical conditions, including Leukaemia diagnosed in 2012, myocardial infarct in 1994, Ischaemic Vascular Disease diagnosed in 2004 and chronic back pain and associated surgeries relating to his back condition, which are unrelated to the sexual abuse as alleged.
Therefore, in part, the Christian Brothers plead that besides sexually abusing Mr Lawrence, they also physically and verbally abused him, and physically abused other boys which was witnessed by Mr Lawrence, which is unrelated to the sexual abuse and for which he is not entitled to claim damages. Essentially, the Christian Brothers say that because Mr Lawrence has suffered injury and damage caused by their other maltreatment of him, the damages he is entitled to receive for any injury or loss caused by the sexual abuse must be reduced.[10] The Christian Brothers rely upon the amending legislation which only allows damages to be awarded for child sexual abuse not for any other type of abuse such as physical or emotional abuse.
[10] Counsel's opening submissions, ts 80 - ts 81; Written opening submissions, par 34.7.
The Christian Brothers also admit Mr Lawrence has suffered psychiatric injury which was caused by the sexual abuse as admitted by the Christian Brothers but say that any injury, loss and damage suffered by Mr Lawrence was also caused by matters which are not child sexual abuse[11] and plead:[12]
[11] Amended defence, pars 28.1, 29.1 and 29.3.
[12] Amended defence, par 29.2.
29.2.… that the plaintiff suffered injury, loss and damage resulting from his circumstances as a child migrant and associated physical (including excessive and indiscriminate punishment) and emotional neglect or abuse (including depersonalisation, lack of individual care and attention; insufficient food and clothing); poor education; lack of mentoring and guidance during and after his childhood at Castledare and Clontarf; lack of employment opportunities; and lack of social skills and resources; …
In respect of the sexual abuse to which Mr Lawrence was subjected, particularly the anal rapes perpetrated upon him by Brother Murphy, which is admitted by the Christian Brothers, there is no issue that such abuse comes within the meaning of the terms 'child sexual abuse' and 'sexual abuse' for the purposes of s 15A of the CLA and s 6A of the Limitation Act. However, there is in issue whether other forms of abuse, particularly physical abuse, to which Mr Lawrence was subjected, came within the meaning of the term 'sexual abuse'.
The issues - what is in dispute
The following issues require my determination:
1.What is the meaning of 'child sexual abuse' or 'sexual abuse', for the purposes of those terms in s 15A of the CLA and s 6A of the Limitation Act? What is the proper statutory construction of those terms?
2.In particular, in the context of the factual circumstances of this case, does the meaning of 'sexual abuse' encompass any physical, and to a lesser extent, any emotional, abuse to which Mr Lawrence was subjected?
3.How was Mr Lawrence treated by his mother in England before he came to Australia? Was he subjected to any form of abuse or trauma? Has any abuse or trauma to which Mr Lawrence may have been subjected when he was a baby and young boy in England caused him to suffer, or contributed to, any injury, loss or damage suffered by Mr Lawrence?
4.Has any abuse, trauma or neglect, which is not child sexual abuse, caused or contributed to any injury, loss or damage suffered by Mr Lawrence?
5.What is the nature and extent of any injury suffered by Mr Lawrence?
6.To what extent did the child sexual abuse perpetrated upon Mr Lawrence while he was a resident at Clontarf and Castledare cause or contribute to any injury suffered by him?
7.What is the nature and extent of any loss suffered by Mr Lawrence as a result of injury suffered by him?
8.In particular, has Mr Lawrence suffered any loss of earning capacity, or past loss of earnings, as a result of injuries suffered by him caused by the child sexual abuse?
9.If so, what is the measure of that loss?
10.Is Mr Lawrence entitled to an award for aggravated and/or exemplary damages?
11.Is Mr Lawrence entitled to be awarded judgment on any past loss pursuant to s 32 Supreme Court Act 1935 (WA) (SCA)?
Background - child migration scheme
It is helpful to briefly outline the statutory background as to how Mr Lawrence, a child born in England, came to be in the care of the Christian Brothers in Western Australia.[13]
[13] Most of what follows is taken and adopted from the defendant's written closing submissions.
Prior to 1946, there was no Commonwealth legislation governing the migration, settlement or guardianship of child migrants.[14]
[14] Exhibit 4.5, Lost Innocents Report, page 107, ch 2, par 2.41.
On 15 August 1946, the Commonwealth government assented to the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOCA).
The IGOCA was to make provision for and in connection with the guardianship of certain children from outside Australia. Mr Lawrence fell within the definition of these children.[15]
[15] IGOCA s 4.
The IGOCA permitted the Minister of Immigration (Minister) to delegate to any State all or any of his powers and functions under the IGOCA.[16] At the same time the Minister was the guardian of every immigrant child.[17]
[16] IGOCA s 5.
[17] IGOCA s 6.
The Minister was permitted to place an immigrant child in the custody of a person who was willing to be the custodian of the child and was in the opinion of the Minister a suitable person to be the custodian of the child.[18]
[18] IGOCA s 7.
The Immigration (Guardianship of Children) Regulations under the IGOCR provided that:
1The authority of the State, shall have, in relation to any immigrant child in respect of whom the Minister has delegated his powers and functions under s 6 of the IGOCA, the rights and powers exercisable by him in relation to a child who, in pursuance of the child welfare laws of the State, is committed to the custody and care of any person or authority.[19]
[19] Regulation 4.
2The duties and obligations of a custodian in relation to an immigrant child shall be the like kind to those of a person in relation to a child was committed to the custodian's care, or for or of whom he becomes a guardian, in pursuance of the child welfare laws of the State in which the custodian is resident.[20]
[20] Regulation 6.
3A person in whose care an immigrant child has been placed by the custodian of the child shall afford to the authority of the State in which he resides, all reasonable facilities for inspecting the conditions under which the child is living and for ascertaining whether the duties and obligations of the custodian are being fulfilled.[21]
[21] Regulation 6A.
The statutory scheme established by the IGOCA envisaged that the State authority would be primarily responsible for the supervision of the welfare and care of child migrants. Accordingly, the Minister received into his guardianship every child migrant who arrived in Australia unaccompanied by a parent. Shortly after the IGOCA was enacted the Minister delegated his powers and functions as guardian of child migrants to State welfare authorities, which in WA was the Director of the Child Welfare Department (CWD). The officer so designated was responsible for seeing that the arrangements made for a child's accommodation and for his placing in employment, and subsequent welfare up to age twenty one were satisfactory.[22]
[22] Exhibit 4.6, Commonwealth Relations Office Child Migration to Australia Report of a Fact Finding Mission by the Secretary of State for Commonwealth Relations to Parliament by Command of Her Majesty August 1956 (Ross Report), page 416, par 4; Exhibit 4.5, Lost Innocents Report, pages 114 - 115, pars 2.71 ‑ 2.72.
The CWA was assented to on 10 January 1948.
The object of the CWA was to make better provision for the protection, control, maintenance and reformation of neglected and destitute children and for other purposes connected therewith.[23]
[23] CWA preamble.
'Ward' included a child who under the provisions of the CWA was received into an institution.[24] Mr Lawrence fell within this definition.
[24] CWA s 4.
It is perhaps with a sense of foreboding, knowing how Mr Lawrence and other children would be later treated by the Christian Brothers, that a child is referred to as an 'inmate' which is defined as meaning 'a ward maintained in an institution'.[25]
[25] CWA s 4.
'Institution' includes 'all orphanages'.[26] 'Orphanage' means 'an institution for the detention maintenance, training, education and employment of destitute or neglected children …'.[27]
[26] CWA s 4.
[27] CWA s 4.
By s 15 of the CWA the orphanages specified in the second schedule were declared to be subsidised institutions for the purposes of the Act. By sch 2 under the heading 'Roman Catholic' both Clontarf and Castledare are specified. 'Subsidised institution' meant an institution maintained wholly or partially by contributions from the Consolidated Revenue Fund.[28] Clontarf and Castledare were subsidised institutions within the meaning and for the purpose of the CWA.[29]
[28] CWA s 4.
[29] CWA s 15.
The CWR made under the Act provided that the manager of a subsidised institution shall be responsible for the custody of all children admitted therein and shall see that all officers carry out their duties in a proper manner.[30] The holder of the office of authority in Castledare and Clontarf for whom liability is held by the Christian Brothers[31] (relevant office holder) was a manager of Castledare and Clontarf within the meaning of CWR reg 7.
[30] CWR reg 7.
[31] CLA s 15B.
Indentures were made between the CWD and voluntary organisations such as the relevant office holder, amongst others. In the indentures, the relevant office holder agreed to bear the responsibility for the care and welfare of the children placed under his care.[32]
[32] Exhibit 4.5, Lost Innocents Report, pages 114 - 115, pars 2.71 - 2.72; Exhibit 24.22, Royal Commission Report, page 502.
The CWR set the standard for Mr Lawrence's care and welfare. 'Inmates' were to be supplied with ample plain, wholesome food.[33] Each child over the age of 6 years was to be supplied with a china cup, plate etc, together with necessary knife, fork, spoon etc, a separate towel, hairbrush and toothbrush.[34]
[33] CWR reg 9.
[34] CWR reg 10.
By reg 32:
All the officials engaged in an institution shall do their utmost to train the inmates to habits of truthfulness, honesty, cleanliness, perseverance, modesty, courtesy and temperance, and so fit them to live honourable and useful lives after leaving the institution.
Counsel for the Christian Brothers submits:[35]
[35] Defendant's written closing submissions, pars 67 - 69.
67The CWR set the scene for [Mr Lawrence]. The CWD had responsibility for the supervision of the welfare and care of [Mr Lawrence] including accommodation, placing in employment, and subsequent welfare up to age twenty one. Corporal punishment was the norm. The Education Department had a statutory responsibility to test [Mr Lawrence]. The CWD had a statutory obligation to inspect Castledare and Clontarf at least once in every six months. The CWD controlled [Mr Lawrence]'s communications with the outside world and when he could leave Castledare and Clontarf on holidays, weekends, or other days with friends or relatives. No one questioned the standard of care or accommodation or education provided to [Mr Lawrence]. The inference is that this was the standard expected and provided for, for children like [Mr Lawrence].
68The child migration scheme is now universally recognised as having been fundamentally flawed with tragic consequences. The evidence received by the Senate Committee overwhelmingly emphasised the dark, negative side of child migration - the brutality of life in some institutions where abuse and assault, both physical and sexual, was a daily occurrence and where hardship, hard work and indifferent care was the norm. Living such negative experiences led some child migrants into a life of family and relationship breakdown and domestic violence, of crime and violence, and of substance abuse.[36]
[36] Exhibit 4.5, Lost Innocents Report, pars 1.25 - 1.26.
69The policy of child migration cannot be seen other than in the context of its time and with regard to the practices of the time, especially the emphasis placed on the institutional care of children, which judged by today’s standards is an outmoded practice, and detrimental, in many cases, to the welfare of children in care. The removal of children from the UK and subsequent treatment they endured in Australian institutions contributed to the harsh outcomes for the children in care.[37]
[37] Exhibit 4.5, Lost Innocents Report, page 129, par 2.118.
I accept the submissions reflects what is expressed in the Lost Innocents Report.
Christian Brothers
The Christian Brothers is a Catholic religious congregation which was founded by Edmund Rice in Ireland in 1802. The Christian Brothers order was established primarily to provide academic education, vocational training and care for poor boys.[38]
[38] Exhibit 24.22, Royal Commission Report, December 2014, page 497. The Royal Commission Report was tendered by the defendant without objection by the plaintiff. It was not made clear to me how the Report was relevant and what findings I could make from the Report. In particular, it was not made clear to me the status of the evidence referred to in the Report, and the findings based on that evidence, and whether I could make any findings based on the evidence led before the Commission. No evidence was led by the Christian Brothers to explain what they were, and what action they have taken in response to allegations of child sexual abuse. The Royal Commission Report refers to action taken by the Christian Brothers and I understand the Report, at least in part, is tendered to prove the actions which were taken by the Christian Brothers in response to allegations of child sexual abuse. In other words, I am required to accept the evidence given before the Royal Commission, and its summary of the evidence, as the steps taken by the Christian Brothers, as evidence in the trial of Mr Lawrence's action for damages. I therefore proceed on the basis that although the evidence before, and the matters addressed by, the Royal Commission, was not evidence given in the trial, I treat it as though it was evidence given at the trial.
Castledare closed in 1983 and Clontarf in 1984.[39]
[39] Exhibit 24.22, Royal Commission Report, pages 498, 499.
I adopt the Royal Commission Report's summary of the governance structure of the Christian Brothers, to the extent there was any, and the conditions in Castledare and Clontarf:[40]
[40] Exhibit 24.22, Royal Commission Report, pages 497 - 499.
…
The Christian Brothers organisation is divided into areas known as provinces. Until 1953 there was one Australia wide province. This was divided into two in 1953.
There was a further division into four provinces in 1957:
•the Holy Spirit Province, based in Perth, which covered Western Australia and South Australia
•St Patrick's Province, based in Melbourne, which covered Victoria and Tasmania
•St Mary's Province, based in Sydney, which covered New South Wales and Papua New Guinea
•St Francis Xavier's Province, based in Brisbane, which covered Queensland and the Northern Territory.
In 2007 the four former provinces joined to form the Province of Oceania.
The leader of a province is known as the Provincial. The Provincial is assisted by the Provincial Council. Between 1947 and 1968, the Provincial Council had five members: the Provincial and four advisers, who were referred to as consulters.
The Provincial Council was responsible for supervising communities within its province. This supervision took the form of annual visits to communities by a member of the Provincial Council. A visitor would stay with the community for a number of days, during which the visitor would speak to and observe the Brothers in the community as well as others in contact with the community. The visiting member would then write a visitation report, which was sent to the Provincial Council.
1.1.Castledare Junior Orphanage
Location
Castledare (also known as St Vincent's Boys Home and Castledare Special School) was in Queens Park, Wilson, three kilometres from Perth in Western Australia, near the Canning River.
Purpose
Castledare was established by the Christian Brothers in 1929 as a residential school for boys with learning difficulties. From 1934 its purpose changed - it began to house boys aged from around five to 10 years of age, including wards of the state, child migrants and private admissions.
Castledare closed in 1983.
Staff and students
According to visitation reports on Castledare, there were five Christian Brothers on staff at Castledare in October 1952 and 115 students. In June 1962 there were five Christian Brothers on staff and 117 students.
Living conditions
The boys' living conditions were described in some visitation reports and by the witnesses who gave evidence before us.
There was very little privacy for boys. The showers held between 10 and 20 boys at a time.
Food
The food at Castledare was scarce.
Mr John Wells, a resident at Castledare, recalls always being hungry, while the Brothers ate well. He states that the Brothers sat at a beautifully laid table up the front of the dining hall, while the boys worked as kitchen hands so that they could chew the Brothers' leftover bones.
VI recalls that the food was of an atrocious quality, but, if the boys did not eat it, the Brothers would beat them.
Clothing
The boys' clothing included ex-army shorts, which were tied with a piece of rope. They wore no shoes or underwear.
Physical work
They boys were required to undertake unpaid work at Castledare.
There was a farm on the property. Boys carried out farm work, milked cows, cleaned the yards and fed slops to the pigs.
Boys were also involved in the construction of a railway that carried trains across Castledare.
Health care
Castledare had its own infirmary and its own matron. VI gave evidence that this meant 'anything that happened in that school, stayed in that school'.
1.2St Vincent's Orphanage Clontarf
Location
Clontarf (also known as Clontarf Boys Town and Clontarf Orphanage Industrial School) was near the Canning River in Perth.
Purpose
Clontarf was established in 1901 and housed Australian-born wards of the state, private admissions and child migrants. From 1929, residents were 12 years or older.
Clontarf closed in 1984.
Staff and students
According to visitation reports on Clontarf, in 1951 there were seven Brothers on staff and 179 students. By 1959 there were eight Brothers on staff and 184 students.
Living conditions
The boys slept on the verandah in the summer months.
Physical work
The boys did physical work, including landscaping the gardens and sports ovals and building work.
(footnotes omitted)
Passage of time
Both Mr Lawrence and the Christian Brothers have been confronted by difficulties in preparing for and presenting their respective cases because of the long period of time which has elapsed since the sexual abuse occurred, even though the Christian Brothers have admitted most of the sexual abuse about which Mr Lawrence gave evidence. Due to the long passage of time the parties have to some extent been put at a disadvantage, particularly the Christian Brothers, who are now no longer able to interview and call potential witnesses because they have died. Because of that long delay the evidence of Mr Lawrence, AB and CD cannot be adequately tested. By reason of the delay the Christian Brothers have lost the opportunity to perhaps bring forward matters of defence and to adequately test the evidence of the witnesses.
It is not possible to locate any of the people who were present at the time who might be able to give evidence, even if they are still alive. It is now not possible to identify who else might have been present or nearby when the incidents are said to have occurred.
While the Christian Brothers have been able to locate historical documentation and records, other documentation which may have been of assistance has not been located or recovered.
Human memory is fallible. Honest witnesses can be wrong in their recollection. It is a matter of common experience that the longer you believe something to have happened, the more convinced you are that it has happened. This can be so even if you are mistaken in your recollection. The longer the delay the more opportunity there is for error and that is especially so for events occurring in childhood, particularly early childhood.
Neither party has been able locate records relevant to Mr Lawrence's employment and earnings history. There are no income tax documents which would normally be produced and tendered into evidence in a case such as this. Although Mr Lawrence gave evidence that he suffered from poor mental health in the 1960s and early 1970s and was diagnosed with depression and prescribed antidepressant medication there are no medical records which confirm that evidence. The earliest medical records commence in 1975 when Mr Lawrence was admitted to Heathcote Hospital.[41]
[41] Exhibit 6.22, page 234.
The passage of time is a factor in people's recollection of events, and memory and recollection often dims with the passage of time. A long passage of time between the events about which Mr Lawrence spoke and this matter coming to court for hearing raises a question about the reliability and accuracy of Mr Lawrence's recollection and whether I can safely rely and act upon it. I accept that, to an extent, the Christian Brothers have lost the means of testing certain aspects of Mr Lawrence's evidence.
An example of the difficulty the long period of time which has elapsed has on people's memories is in relation to the evidence of AB who, when he was interviewed by the assessors, was uncertain whether it was Brother Murray or Brother Marques who anally raped him.[42]
[42] Exhibit 11.2.
I have had regard to these matters when assessing the evidence and making findings.
'Sexual abuse' - the meaning of
The term 'sexual abuse' is not defined. Therefore that term must be construed according to its ordinary, grammatical meaning having regard to the statutory text.[43] In the interpretation of the term 'sexual abuse' a construction that promotes the purpose or object underlying the written law shall be preferred to a construction that would not promote that purpose or object.[44]
[43] Section 19 of the Interpretation Act 1984 (WA); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69], [71], [78] (McHugh, Gummow, Kirby & Hayne JJ); Birch v The State of Western Australia [2017] WASCA 19 (2017) 51 WAR 454 [86] – [89] (Buss P); City of Kwinana v Lamont [2014] WASCA 112 [47].
[44] Interpretation Act s 18.
By s 19 of the Interpretation Act extrinsic material, including any explanatory memorandum relating to the Bill containing the relevant provision,[45] or the Second Reading Speech,[46] may be considered in construing the meaning of the term 'sexual abuse'. However, by s 19(3):
[45] Interpretation Act s 19(2)(e).
[46] Interpretation Act s 19(2)(f).
(3)In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to -
(a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; and
(b)the need to avoid prolonging legal or other proceedings without compensating advantage.
Relevantly, the explanatory memorandum to the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017, explains:[47]
[47] Explanatory Memorandum, page 3.
'Sexual abuse' is intentionally left undefined. The court will have latitude to determine the application of the term 'sexual abuse' in accordance with the ordinary meaning and common understanding of the term. A court will not be confined to acts or omissions that are criminal offences. Consistently with the focus of the Royal Commission and its Report, the Bill deals only with child sexual abuse and does not cover physical or emotional abuse or neglect which occurred during childhood.
In his Second Reading Speech the Attorney General, the Honourable Mr J R Quigley, in part, explained:[48]
[48] Western Australia, Parliamentary Debates, Legislative Assembly, 22 November 2017, 5,913 - 5,914 (Mr J R Quigley, Attorney General).
The sexual abuse of children is one of the most abhorrent crimes imaginable and the fact these crimes may have happened many years ago should not be a barrier to being able to seek justice and compensation in our civil courts. The Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017 of Western Australia seeks to remedy this. The bill removes limitation periods for all child sexual abuse actions, both retrospectively and going forward. The amendments will define a child as a person under 18 years of age. The phrase 'sexual abuse' has not been defined in the bill and the court will have latitude to determine it in accordance with the ordinary meaning and common understanding of the term. A court will not be confined to acts or omissions that are criminal offences.
(emphasis added)
During the course of Parliamentary debates, the Attorney General said:[49]
[49] Western Australia, Parliamentary Debates, Legislative Assembly, 20 February 2018, 335 - 336 (Mr J R Quigley, Attorney General).
Most of the reforms around Australia, albeit they vary, deal with sexual abuse as opposed to physical or emotional abuse without a sexual element to it. The term 'sexual abuse' has been defined in this bill in an amendment to, I think, section 6 of the Civil Liability Act. It has deliberately left open the definition of sexual abuse for the courts to determine in any particular instance whether acts constitute sexual abuse. People who are into sadomasochistic practices might derive sexual stimulation from the application of pain to another. The way would be open for the court to find that to be sexual abuse because we have not confined the enlivening aspect of abuse that would involve some sexual stimulation of another.
…
Back then, corporal punishment of children was accepted in the community. We have not included physical abuse when it does not involve an element of sexual stimulation. Similarly, there are many children out there in the community today who we could say are suffering from some form of emotional abuse. This legislation takes the extraordinary step of lifting the statute of limitations for one particular tort—that is, child sexual abuse—that has to have this element of sexual stimulation by the abuser and is not just abuse per se. That is a policy issue.
(emphasis added)
In the Macquarie Dictionary (5th edition) the adjective 'sexual' is defined as follows:
1.of or relating to sex;
2.occurring between or involving the two sexes;
3.having sex or sexual organs, or reproducing by process involving both sexes, as animals or plants;
4.having strong sex drive or having the ability to arouse strong sexual interest.
The word 'abuse' can be used as a verb or a noun. The Macquarie Dictionary (5th edition) defines 'abuse' as:
1.to use wrongly or improperly; misuse: to abuse authority …;
2.to do wrong; act injuriously towards: to abuse one's wife;
3to avail;
…
5.wrong or improper use; misuse: the abuse of privileges
…
8.ill treatment of a person;
9.a corrupt practice or custom; an offence: the abuses of bad government.
The term 'sexual abuse' is not defined.
In the new Shorter Oxford English Dictionary 'sexual', relevantly, is defined as:
Pertaining to or arising from the possession of a particular sex; relating to the sexes or the social relations between them;
Pertaining to or involving physical intercourse, as in reproduction; deriving from or relating to desire for sex or for carnal pleasure
Characteristic of or peculiar to one sex or the other.
The new Shorter Oxford English Dictionary defines 'abuse', as a noun:
1.Improper usage; a corrupt practice;
2.Improper use, perversion, (of)
…
4.Reviling; …
5.Injury, maltreatment;
6.Violation; defilement.
As a verb 'abuse' is defined as:
1.Misuse; make a bad use of; wrongly take advantage of …
2.Violate (a person); defile …
…
5.Maltreat, injure, esp repeatedly;
6.Speak insultingly or unkindly to or of.
Again, the term 'sexual abuse' is not defined.
Some definitions of 'child sexual abuse'
In 2009, mandatory reporting provisions of the sexual abuse of children were introduced into the Children and Community Services Act 2004 (WA) (CCSA) and the Family Court Act 1997 (WA).[50]
[50] Children and Community Services Amendment (Reporting Sexual Abuse of Children) Act 2008, commencement date 1 January 2009, s 9AA, reporting sexual abuse of children.
Sexual abuse in s 124A of the CCSA is defined as:
sexual abuse, in relation to a child, includes sexual behaviour in circumstances where -
(a)the child is the subject of bribery, coercion, a threat, exploitation or violence; or
(b)the child has less power than another person involved in the behaviour; or
(c)there is a significant disparity in the developmental function or maturity of the child and another person involved in the behaviour;
In 2014 the Australian Institute of Criminology (AIC) published a report entitled 'Historical Review of Sexual Offence and Child Sexual Abuse Legislation in Australia: 1788 - 2013'.[51] The AIC was contracted by the Royal Commission in 2013 to undertake a historical review of sexual offence legislation in Australia, particularly as it related to children, from British colonisation in 1788 to the present.[52] Observing that child sexual abuse is a nebulous phenomenon which has been defined in different ways at different times, the AIC, for the purpose of the report, defined child sexual abuse as:[53]
[51] Exhibit 24.35.
[52] Exhibit 24.35, page 1,226.
[53] Exhibit 24.35, page 1,227.
… involvement of dependent, developmentally immature children and adolescents in sexual activities that they do not fully comprehend, to which they are unable to give informed consent, or that violate the social taboos of family roles (Kempe and Kempe 1978:60).
This definition was chosen for a number of reasons. First, it acknowledges the child's limited ability to give informed consent. Second, the definition encompasses both contact offences (eg fondling of genitals and/or breasts, masturbation, oral sex, vaginal or anal penetration etc), and non-contact offences (eg exposing the child to pornography, grooming and sexual self-manipulation). Finally, the definition was selected because it encompasses sexual acts involving two children or adolescents who may be below the legal age of consent.
The Christian Brothers' 'Child Protection Policy and Guidelines and Code of Professional Conduct' published in May 1998 defines 'child sexual assault' as:[54]
[54] Exhibit 24.43, page 1,367.
Child Sexual Assault occurs when an adult or another person uses his or her power or authority over the child or takes advantage of the child's trust and respect to involve the child in sexual activity. Child Sexual Assault not only refers to sexual intercourse, although sexual intercourse is often involved. Child Sexual Assault includes fondling genitals, masturbation, oral sex, vaginal or anal penetration by a finger, penis or any object. Child Sexual Assault may also include exhibitionism and acts of indecency committed towards a child. In all cases the offender has more power than the child and misuses that power to take advantage of the child.
There are common themes in the definition of child sexual abuse adopted by the AIC and the definition adopted by the Christian Brothers in its internal policies in 1998. However, as Parliament made clear by deliberately not defining what 'child sexual abuse' means so that the court has latitude in determining what that expression means in the factual circumstances of each case, definitions adopted in other legislation, or in other contexts, provide only limited guidance in construing the natural and ordinary meaning of the expression.
In a later code of conduct published in 2013, the Christian Brothers defined sexual abuse as occurring:[55]
[55] Exhibit 24.48, page 984, 'Safeguarding Children and Young People', resource document regarding child protection policy and guidelines for Oceania Province of the Christian Brothers, 4 July 2013.
… when a child or young person is used by an older or bigger child, adolescent or adult for his or her own sexual stimulation or gratification - regardless of a country's or state's legislated age of majority or age of consent. This can be contact or non-contact acts, including threats and exposure to pornography.
In New International Frontiers and Child Sexual Abuse - Theory Problems and Progress,[56] Ben Mathews,[57] recommends the following definition for the expression 'child sexual abuse':[58]
[56] Mathews B, New International Frontiers in Child Sexual Abuse: Theory, Problems and Progress (2019).
[57] Facility of Law Queensland University of Technology, Brisbane.
[58] Mathews B, New International Frontiers in Child Sexual Abuse: Theory, Problems and Progress (2019), glossary, page 305.
Child sexual abuse Includes a broad spectrum of contact and non‑contact sexual acts inflicted on a child. The definition adopted here I follows that proposed by Mathews and Collin-Vézina (2017), namely that child sexual abuse will exist when: (1) the person is a child (from either or both developmental and legal standpoints); (2) there is no true consent (due either to lack of capacity to provide consent, or presence of capacity but lack of consent in fact); (3) the acts are sexual (being contact or non-contact acts done to seek or obtain physical or mental sexual gratification, whether immediate or deferred in time or space, or otherwise legitimately experienced by the child as a sexual act); and (4) the acts constitute abuse (due to the presence of a relationship of power, the child's position of inequality, and the exploitation of the child's vulnerability).
Earlier in the text Mr Mathews expands upon that definition:[59]
[59] Mathews B, New International Frontiers in Child Sexual Abuse: Theory, Problems and Progress (2019), page 79 - 80.
Any effort to develop a conceptual model of CSA must recognise not only its complexity, but the sensitivity of the topic and the potential significance of the model's influence on theory, research, policy, law and practice. This model does not in any way legitimise or minimize the seriousness of impermissible acts falling outside its parameters. Acts not characterised on this model as CSA can still involve violence and serious consequences requiring strong responses. Nevertheless, there is a clear need to improve shared understandings of the concept of CSA, for multiple domains of research, law, policy, prevention, and the establishment of social norms.
The analysis and theoretical grounding for this model promotes a deep, nuanced focus on the key concepts in this context. The analysis in Mathews and Collin-Vézina (2017) concluded that the concept of 'child' should be analysed from dual perspectives of developmental capacity and legal chronological age of adulthood. The concept of consent must be considered at face validity of apparent surface consent, and experientially by asking whether true consent exists, which we argue requires full, free, voluntary and uncoerced participation. The concept of when acts are 'sexual' should embrace contact and non-contact acts done for the purpose of seeking or obtaining physical or mental sexual gratification, whether immediate or deferred temporally or spatially, as well as the child's experience of the act. Finally, the term 'abuse' is distinctive in possessing a heightened wrongfulness derived from the unconscionability of the acts, which in turn flows from four indicia: a relationship of power; the child being in a position of inequality; the child's vulnerability being exploited to her or his detriment; and absence of true consent.
On this approach, while instances of sexual assault and harassment will also often (but not always) constitute abuse, these understandings of the concepts individually and collectively constituting 'child sexual abuse' distinguish the overarching it as a concept from others such as assault, harassment and victimization, and illustrate when and why an act or experience is more legitimately understood as child sexual abuse.
Child sexual abuse will always exist when:
1.the person is a child (from either or both developmental and legal standpoints);
2.there is no true consent (due either to lack of capacity to provide consent, or presence of capacity but lack of consent in fact);
3.the acts are sexual (being contact or non-contact acts done to seek or obtain physical or mental sexual gratification, whether immediate or deferred in time or space, or otherwise legitimately experienced by the child as a sexual act); and
4.the acts constitute abuse (due to the presence of a relationship of power, the child's position of inequality, and the exploitation of the child's vulnerability).
So, for example, a 9 year old girl will be a 'child', unable to give true consent, and will experience sexual abuse in situations of incest, rape, and all other contact and non-contact acts that are done to seek physical or mental sexual gratification for any person, whether immediate or deferred in time or space, where those acts occur in a relationship of power, with the girl in an unequal position, with her vulnerability exploited in a profound way to the benefit of the other person and to her detriment. Accordingly, this would also include as child sexual abuse all acts done in relation to a child to create child pornography, involve the child in sex trafficking, prostitution or the sex trade. It would also include many instances of child marriage, and may extend to some instances of female genital cutting.
In my respectful view the suggested definition of the term 'child sexual abuse' by Mr Mathews is a reasonable and proper construction of the term 'sexual abuse' in the legislation. It accords with the ordinary meaning and common understanding of the term in s 6A of the Limitation Act and s 15A of the CLA.
Mr Mathews' view that the concept of what is 'sexual' must involve sexual gratification reflects and is consistent with the explanation given by the Attorney General in the Parliamentary debates that physical abuse has not been included in the amending legislation when it does not involve an element of sexual stimulation.[60]
[60] Western Australia, Parliamentary Debates, Legislative Assembly, 20 February 2018, 335 - 336 (Mr J R Quigley, Attorney General).
In my view, the meaning of the word 'abuse' is important in construing the meaning of the term 'sexual abuse' or 'child sexual abuse'. I agree the ordinary and grammatical meaning of the word 'abuse' in the context of the amending legislation means the conduct has a heightened wrongfulness because of the unconscionability of the conduct arising from the abuser being in a relationship of power over the child and the child being in a corresponding position of inequality, causing the child to be vulnerable to being exploited to his or her detriment where there is no true consent to the conduct. Those factors are particularly important in the context of institutional abuse where the institution has the responsibility for the care, protection and education of a child.
Accordingly, I respectfully suggest the definition or the meaning proposed by Mr Mathews will often be helpful in the construction of the meaning 'sexual abuse'. However, it is important that, as the Attorney General explained in his Second Reading Speech, the courts have latitude to determine the meaning of the term in accordance with the particular circumstances of each case. I respectfully adopt the observations of Ginnane J of the Victorian Supreme Court in Department of Health and Human Services v County Court of Victoria:[61]
[61] Department of Health and Human Services v County Court of Victoria [2018] VSC 322 [66].
It is inappropriate to attempt a complete definition of the term 'sexual abuse', but only to interpret it for the purposes of its application to the facts that the Judge found. That is because other circumstances may arise that requires an addition to, qualification or modification of a definition previously adopted.
In that case Ginnane J found that the County Court applied an incorrect interpretation of the term 'sexual abuse' within the meaning of s 162(1)(d) of the Children, Youth and Families Act 2005 (Vic) which reads:
(d)the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
In considering whether the father's touching of a child's bottom constituted sexual abuse, the County Court judge found that she had to assess the motivation of the father in order to decide whether his conduct was sexual abuse.[62] Ginnane J found:[63]
[62] Department of Health and Human Services v County Court of Victoria [21].
[63] Department of Health and Human Services v County Court of Victoria [67] - [69].
67In my opinion, for the purposes of consideration of the facts that the Judge found, the term 'sexual abuse' is s 162(1)(d) means conduct engaged in towards another person of a sexual nature without their consent, including touching a private part of their body, when the touching is not accidental and has no legitimate purpose such as a medical purpose.
68The Judge did have to be satisfied on the balance of probabilities, taking into account the gravity of the allegation, that EF had suffered or that both children were likely to suffer significant harm as a result of sexual abuse. If the evidence had raised a possible innocent explanation for the touching, the context and any evidence of the purpose of the touching would have been relevant, for instance to exclude accidental conduct or touching for some legitimate purpose. But that was not this case on the facts that the Judge found. Therefore, I do not consider that the father's motivation had to be identified, as there was no evidence suggesting he had touched the child accidentally or for a legitimate purpose.
69In my respectful opinion, the Judge by stating that the intention and motivation of the father's touching were relevant adopted an incorrect interpretation of the term 'sexual abuse' in s 162(1)(d). There was no requirement that the evidence established that the father had a motivation or intention to sexually abuse. Moreover, the father's conduct did not fall outside the term 'sexual abuse' because his touching of EF was more likely to reflect his desire to exercise power and control, and a failure on his part to recognise that EF was uncomfortable with the conduct. A desire to exercise power and control can be part of sexual abuse.
Ginnane J's ruling must of course be considered in the context of the facts of that case where at first instance the judge found that the circumstances in which the father touched the child's bottom was uncertain and because there was no proof of a sexual context to the father's conduct, other than the touching, to determine whether that conduct constituted 'sexual abuse' required assessment of the father's motivation before a positive finding of sexual abuse could be made.[64] Ginnane J found it was unnecessary to consider the father's motivation because the touching of a child's bottom without its consent, when the touching was not accidental and had no legitimate purpose, was 'sexual abuse' for the purpose of the statute.
[64] Department of Health and Human Services v County Court of Victoria [47].
Therefore, that case may place some qualification on the definition proposed by Mr Mathews in that for the act to be sexual, it did not need to be done for the purposes of seeking or obtaining physical or mental sexual gratification. In the circumstances of Mr Lawrence's case I do not need to resolve that issue.
As I have earlier explained, most of the pleaded allegations of sexual abuse are admitted by the Christian Brothers. Essentially the only allegations which the Christian Brothers do not admit were sexual abuse are in relation to the incidents involving Brothers Foyle and Doyle. When, later in these reasons, I come to consider whether either of those incidents constitute 'sexual abuse' within the meaning of that term in s 6A of the Limitation Act and s 15A of the CLA, I do so on a reasonably narrow basis. Accordingly, in making my findings it was unnecessary for me to have regard to the following observations which I am about to make. Therefore, the following observations are obiter observations. The observations are made, in part, because of the way in which the Christian Brothers have pleaded and ran their defence against Mr Lawrence's claim for damages, by saying that, besides sexually abusing Mr Lawrence, they also physically abused him and maltreated him in a variety of ways, which has caused injury and damage to Mr Lawrence, which are not compensable, and therefore it is submitted reduces his entitlement to damages.
In part, I also make the observations because of an exchange in the Parliamentary debates about the amending Bill which seems to me to be prescient in relation to the issues which arise in the facts of this case, when Ms M J Davies, the leader of the National Party, said:
I am sure advice was provided in relation to the rationale for limiting legislation to deal only with sexual abuse. That is not to say that we are trying to create a catch all. Much of the evidence that was provided to us by victims and advocates make it clear that it is very hard to delineate between sexual and other forms of abuse. Often it is all bound into one; physical abuse accompanies sexual abuse and mental abuse, and it is very hard.
To which the Attorney General, responded:[65]
[65] Western Australia, Parliamentary Debates, Legislative Assembly, 28 November 2017, 6,178 (Mr J R Quigley, Attorney General).
That's why we've left the definition open-ended.
In this case, as I shall explain, the evidence demonstrates that the sexual abuse of Mr Lawrence was bound up with physical and emotional abuse in the context of a pervasive atmosphere created by the Christian Brothers of violence, fear and terror. When I come to consider causation I will explain that if any harm has been caused to Mr Lawrence because of how he was maltreated while in the care of the Christian Brothers, that maltreatment and any consequent harm are so entwined with the child sexual abuse and the harm which was caused by that abuse, that the causes and the harm cannot be disentangled. I will also explain how the inability to disentangle the competing causes and effects impacts upon the assessment of damages.
The consultant psychiatrist instructed by Mr Lawrence's solicitors to review Mr Lawrence and provide a report, Dr Shub, explained that when in his reports he refers to child sexual abuse he is referring to:[66]
[66] ts 532.
… abuse perpetrated by somebody usually in authority involving a range of behaviours from sometimes commencing with grooming, but genital fondling, digital anal penetration, penile/anal penetration which is the case with Mr Lawrence. And there's a - there's a whole spectrum within that - that category of childhood sexual abuse.
Dr Shub explained that child sexual abuse can include forms of physical abuse:[67]
[67] ts 532 - ts 533.
… I think they're connected as a kind of sadistic brutalisation of children which involves threats of physical assault and abuse in conjunction with the sexual abuse. He particularly described pain when he was penetrated which is connected obviously with the physical sensations of the sexual abuse. So they're - they're collated, they're - they're interrelated. However, I would say that sexual abuse in children is far more pathogenic than physical abuse.
I'm sorry, doctor, when you say pathogenic what do you mean? - - - What I mean is that it generates persistent, pervasive psychopathology ie anxiety, depression re-experiencing phenomena. And in my experience many people tell me that the physical wounds heal, but not the psychological wounds by which they mean that the abuse by somebody who - who's - who they've been allegedly cared for, the breach of trust and their sexual confusion as a consequence of the - of the abuse is long‑lasting and - and catastrophic in my view and - and in my experience of managing thousands of children and adolescents who have been abused.
If an institution creates, or allows an atmosphere or environment to be created, in which a child's vulnerability, simply by reason of his or her young age, is exploited for the purposes of sexual gratification by those people who have power over the child by virtue of their association with the institution, then that conduct (of creating or allowing an atmosphere to develop by which a child's vulnerability is exploited for the purposes of sexual gratification) may, in my view, fall within the meaning of the word 'abuse'. That is so even if the conduct seen in isolation would not normally be regarded as for the purposes of or involving sexual gratification or stimulation. All conduct or acts, which in themselves might not be regarded as sexual, but which enable sexual abuse to occur, would be considered as falling within the meaning of the term 'sexual abuse' for the purpose of the legislation. That is so whether or not that other conduct or those other acts are intended to enable the sexual abuse to occur.
If the conduct heightens or increases the child's vulnerability to being exploited by being sexually abused, that conduct may fall within the definition of the term 'sexual abuse'. If the conduct is intended to lead to sexual abuse, such as grooming behaviour over a period of time, such conduct which seen in isolation might not be regarded as sexual abuse, might be considered to be sexual abuse. However, even if the behaviour is not intended to lead to a child's vulnerability being exploited for the purposes of sexual gratification of the abuser, if it does actually heighten or increases the child's vulnerability which allows the sexual abuse to occur, that may also be considered, in my view, to be sexual abuse.
Therefore, if in the context of an institution, or indeed any relationship where an adult has power over a child, any conduct which heightens the child's vulnerability and allows him or her to be exploited for purposes of sexual gratification may be considered to be sexual abuse. If, in an institutional setting, a child is regularly physically beaten and threatened which causes a child to be fearful, frightened and defenceless, or unable to turn to anyone for help, thereby heightening or increasing the child's vulnerability to do what the child is directed or forced to do, that conduct may fall within the meaning of the expression 'sexual abuse'. If the child's resistance to sexual abuse, or sexual overtures, is lowered or reduced because of feelings of fear, helplessness and defencelessness, the conduct, the physical abuse, may come within the meaning of the term 'sexual abuse'. That is so even if the person administering the physical abuse is not the sexual abuser, providing the physical abuse aides or assists, whether intentionally or otherwise, the sexual abuse to occur. If a child is physically beaten because of reporting sexual abuse, that conduct makes the child more vulnerable to being sexually abused by adding to the child's feelings of fear, helplessness and defencelessness. It is likely to reduce a child's resistance against being sexually abused. Even if the child itself is not physically abused for reporting sexual abuse, if the child is aware of others being physically punished for reporting sexual abuse, that knowledge increases the child's feelings of helplessness and fear and increases his or her vulnerability to being sexually abused.
In any event the particularisation of the claims are relatively straightforward and would not have required considerable work or time to prepare and finalise.
In my view the scale item for particulars of damages is adequate and I decline to make an order to lift the amount allowed in respect of that item.
Scale item 18 - preparation
The maximum allowed for preparation under the Determination is $59,400. The draft bill of costs estimates the sum which can be claimed for preparation is $190,000.
My role at this stage is not to undertake any detailed assessment of the claim for costs but is to proceed by way of impression in the exercise of a broad discretion whether to order that the scale items be uplifted.
I readily accept that the amount of time, and the consequential costs, in preparing this matter for trial would have been significant. I am satisfied the maximum allowed by item 18 of the Determination is inadequate and, subject to my consideration as to whether the reason for the inadequacy is because of the unusual difficulty, complexity or importance of the matter, I would order that the plaintiff's costs be taxed without reference to the scale limit provided by item 18 of the determination.
Scale item 21(i) - additional counsel fee on trial
The draft bill of costs claims an additional counsel fee on trial for trial counsel, Mr Hammond. No explanation, or evidence, is provided for why an uplift is sought for trial counsel's fee. Item 30 of the draft bill of costs identifies the days for which an additional counsel fee is sought are 25 January, 27 January, 1 February and 2 February 2020. Those days were over weekends or a public holiday. Despite the lack of evidence and explanation, I infer that additional counsel fee is sought for when counsel was not in court but was preparing for or working on the trial over weekends.
I accept that during the trial counsel would have been working over weekends and beyond the days in court. The amount claimed in the draft bill of costs is approximately four times the maximum allowed under item 21(i) of the Determination. I am satisfied that in respect of that item the maximum scale amount is inadequate.
As I observed in the reasons for decision, this action was the first matter to proceed to trial following the amendments to the Limitation Act and CLA which commenced operation on 1 July 2018.[1283]
[1283] Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [715].
In summary, I am satisfied that in respect of scale items 18 and 21(i) the costs determination is inadequate. However, it remains to be considered whether that inadequacy relates to 'the unusual difficulty, complexity or importance of the matter'. I turn to consider each of the criteria referred to in s 280(2) in assessing whether this case meets any of those criteria which might justify the making of a special costs order.
'Unusual difficulty'
As I observed in my reasons, the long passage of time between the sexual abuse inflicted upon Mr Lawrence and these matters coming to trial of approximately 60 years has caused difficulty to both Mr Lawrence and the Christian Brothers in preparing for and presenting their cases at trial.[1284] I explained in the reasons the nature and extent of the difficulties caused to each of the parties, particularly the difficulty in obtaining contemporaneous documentation, and the impact upon memories, of that long period of time. The effect of the amending legislation is that inevitably the parties to the litigation will be confronted with difficulties because of the long passage of time between the time the cause of action accrued and the matters proceeding to trial. It is a difficulty which does not normally arise in litigation because of the operation of limitation periods. The Limitation Act requires actions to be commenced within three years from the date the cause of action accrued.[1285] Of course, in relation to historical child sexual abuse causes of action, a limitation period no longer applies.
[1284] Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [58] - [65].
[1285] Section 14 of Limitation Act 2005.
I am satisfied that the passage of time posed a difficulty for the plaintiff in this case. As I noted in my reasons, there were gaps in the medical documentation. There was no medical documentation before 1975. Also, no economic loss documentation such as pay and employment records and income tax returns were before the court. I am satisfied the absence of those records is related to the long period of time which has elapsed. I am also satisfied that the absence of those historical records caused difficulty in proving the plaintiff's case. In particular, again as I observed in my reasons, Mr Lawrence had an understandable poor memory of many matters which had occurred in his life, which may have been able to be refreshed if there was contemporaneous documentation.
I am also satisfied that the difficulty was unusual because of that long passage of time. It is not a difficulty which will usually, or normally, arise in personal injury actions because of the operation of the Limitation Act.
I am therefore satisfied that this action was of 'unusual difficulty' associated with the long passage of time from the date the cause of action accrued until the matter proceeded to trial.
'Complexity'
This action proceeded to trial as an assessment of damages for personal injury, liability having been formally admitted on the first day of the trial.[1286]
[1286] Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [6].
The claim for damages was assessed having regard to normal common law principles without regard to the restrictions and limitations imposed by the CLA.[1287]
[1287] Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [9].
Therefore, on one hand this action might be viewed as no more than an assessment of damages for personal injury and as not giving rise to any particular complexity.
However, in my view this action did give rise to issues of complexity, including issues which would not normally arise in a personal injury assessment of damages.
Although there was no real issue that the abuse suffered by Mr Lawrence was 'child sexual abuse', there was a significant issue at trial as to the extent to which the child sexual abuse caused or contributed to Mr Lawrence's injury and loss. That issue in part turned upon the meaning of the expression 'child sexual abuse', which was intentionally not defined.[1288]
[1288] Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [66] - [70].
The Christian Brothers admitted that most of the sexual abuse to which Mr Lawrence claimed he was subjected occurred and that it was child sexual abuse. However, the Christian Brothers pleaded that Mr Lawrence suffered injury and trauma caused by others matters which were not child sexual abuse, including physical and other abuse and emotional deprivation to which the Christian Brothers subjected Mr Lawrence. The resolution of that issue required consideration of what was the meaning of the expression 'child sexual abuse' and how any other trauma experienced by Mr Lawrence during his life may have impacted upon any injury and loss suffered by him.
The defendant argued that Mr Lawrence's early childhood experiences in England caused him injury and loss. It was also argued other incidents during his life, such as being a passenger in a bus which was involved in a motor vehicle accident when he was living at Clontarf in which a child died and others were seriously injured, and a further incident when he was raped by a farmer after he left Clontarf, caused him injury and loss.
The extent to which any of the matters raised by the defendant caused Mr Lawrence injury and loss was complicated by the need to examine and analyse historical documentation, mainly medical documentation.
I found that Mr Lawrence suffered from post-traumatic stress disorder and a major depressive disorder. That finding was mainly based on the evidence of the expert psychiatrist called by the plaintiff, Dr Shub.[1289]
[1289] Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [694] - [702].
The defendant called an expert psychiatrist, Dr Piirto, who gave evidence that Mr Lawrence suffered from an unspecified anxiety disorder and personality disorder. I rejected that diagnosis. Each of the psychiatrists prepared detailed and lengthy medical reports involving analysis of Mr Lawrence's historical medical documentation. It would have been necessary, I accept, for the plaintiff's solicitors to have spent considerable time correlating that historical medical documentation and providing it to Dr Shub.
Dr Shub gave evidence that the diagnosis of post-traumatic stress disorder is a relatively recent medical diagnosis. He also gave evidence that it is only in relatively recent times that the medical profession has gained a greater understanding of the long term harmful effects upon children of sexual abuse.
The differing views of Dr Shub and Dr Piirto were largely centred around their differing analysis of the historical medical records.
The nature of, and the basis upon which, there were differing views between Dr Shub and Dr Piirto concerned complex matters.
I find that because of the matters raised by the Christian Brothers regarding the cause of Mr Lawrence's injury and loss and the nature of the psychiatric evidence were matters of complexity within the meaning of that word in s 280(2) of the LPA.
'Importance'
In relation to the meaning of the word 'importance', Martin CJ in Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) observed:[1290]
[1290] Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [17] - [19].
17It is common ground between the parties that the word 'unusual' qualifies only the expression 'difficulty' and does not qualify the words 'complexity' or 'importance'. Another issue was, however, raised in argument in relation to those words, and that concerns the meaning to be given to the word 'importance'. Heartlink submits that the criterion of importance cannot be met having regard to the interests of the parties only, but must, in order to be satisfied, import an element of importance to the community.
18I cannot see any reason in policy or principle why the word 'importance' should be construed in this way. If it had been the intention of the legislature to require the court to give consideration to an issue of community or public importance, then I think it would have been reasonable to expect the legislature to use words that would connote that meaning, such as the well-known phrase 'public importance' which is found in a number of other legislative provisions.
19It seems to me that by reference to 'importance' in this context, the legislature is allowing the court to have regard to the question of whether the work done was appropriate to the significance of the issues that arose in the litigation. Significance can arise either because of the significance of the issues to the parties or because of the significance of the issues to other prospective parties or to the public or to the community generally. In this case, the issues raised were of considerable significance to the liquidators in the practice of their profession, and in respect of whom serious allegations were made.
In having regard to the importance of the matter for the purposes of s 280(2) of the LPA, and adopting the language of Martin CJ in Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq),[1291] I have regard to the significance of the issues to the parties or because of the significance of the issues to other prospective parties, or to the public or to the community generally.
[1291] Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [19].
Clearly this trial was of significance to Mr Lawrence who was claiming damages in respect of a cause of action which, until the limitation periods for child sexual abuse causes of action were removed by the amending legislation which came into effect on 1 July 2018, prevented him from proceeding with the cause of action. The damages awarded to him were in respect of psychiatric injury he had suffered since his childhood. The injury impacted upon his entire life.
The action was also of significance to the defendant. It was important for the defendant to obtain a judicial determination of how any other abuse perpetrated by it upon a child in its care was relevant to the awarding of damages. It was important for the defendant, who is the defendant in a number of actions in this court brought by other children formerly in its care, to obtain judicial determination of an award of general damages for psychiatric injury. It is likely that most child sexual abuse causes of action against the defendant will concern predominantly psychiatric injury rather than physical injury.
It was also important to the defendant to obtain a determination as to whether there was power to award pre-judgment interest pursuant to s 32 of the Supreme Court Act.
It was important to the defendant to obtain a judicial determination of how damages for loss of earning capacity might be assessed having regard to the difficulties and complexities in assessing what were a plaintiff's loss of earnings, if any, having regard to the contemporary employment, wage and social conditions many years, up to sixty years, ago and in circumstances where the plaintiff has worked and earned an income which is unable to be assessed with any precision because of the absence of wage and employment records.
Further, the matters determined in the judgment were of significance and had importance to other prospective parties or to the public or to the community generally. The amending legislation removes limitation periods in respect of all child sexual abuse causes of action, not just for institutional sexual abuse. Therefore, any person who has been sexually abused as a child, whether in an institutional setting, or by an individual such as a relative or family friend, in other words, victims of child sexual abuse committed by people convicted of crimes against them, are now able to commence proceedings claiming damages, notwithstanding the crimes may have been committed many years ago.
The determination of the issues in this matter was of significance and importance to prospective parties in relation to the assessment of damages. It may be because of the nature of psychiatric injury caused by child sexual abuse that the full extent of the abuse does not become apparent for many years which is likely to impact upon whether actions are commenced and if so, when. This decision potentially has importance or significance to the wider public or community by informing them of the ability to bring an action and of the issues which are likely to be addressed in that action.
I find that this matter was of importance within the meaning of that word in s 280(2) of the LPA.
I am satisfied that in respect of those two items in respect to which I have concluded, the scale limit is inadequate that the inadequacy was caused by 'the unusual difficulty, complexity or importance of the matter'. Therefore in the exercise of my discretion I would, in the alternative, order that the payment of the plaintiff's costs be taxed without regard to the scale item provided with respect to item 18 and item 21(i).
The plaintiff also seeks an order for the costs of two senior practitioners attending trial in addition to counsel and senior counsel. The defendant does not oppose the plaintiff's claim for costs of two senior practitioners attending trial.
In my view it was reasonable for two senior practitioners to have attended each day of the trial in addition to counsel. The defendant was represented by two experienced counsel. Also in attendance for the defendant was a solicitor.
In my view it is reasonable that the plaintiff's costs be taxed on the basis he is entitled to the costs of two senior practitioners attending trial in addition to counsel.
Summary
In summary I make the following orders:
1.The defendant pay the costs of the applicant in CIVO 151 of 2018, including reserved costs, to be taxed if not agreed.
2.Subject to par 3.2, the defendant pay the plaintiff's costs of the Action, including reserved costs, to be taxed if not agreed.
3.In relation to order 2 above:
3.1.the costs be assessed up to and including 6 November 2019 without reference to the limits (though with reference to the hourly rates) provided for in respect of the following items in the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018;
3.1.1.Item 18 - preparation.
3.2.the costs be assessed at 90% of the costs from and including 7 November 2019 as between a law practice and its client.
4.The plaintiff be entitled to claim the costs of two senior practitioners attending trial, in addition to counsel and senior counsel.
5.The defendant pay the plaintiff's costs of this application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Herron
20 MAY 2020
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