P v D

[2018] NSWDC 277

District Court

New South Wales

Medium Neutral Citation:	P v D [2018] NSWDC 277
Hearing dates:	25, 26 and 27 September 2018
Date of orders:	04 October 2018
Decision date:	04 October 2018
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1)   Judgment for the plaintiff against the defendant for $472,742.04. (2)   Order the defendant to pay the plaintiff’s costs. (3)   Order the plaintiff to pay the defendant’s costs of the Amended Defence filed on 26 September 2018. (4)   Grant leave to the parties to approach my Associate within 7 days if any different costs order is sought.
Catchwords:	TORTS – sexual assault – child assaulted by adult resulting in psychological trauma and drug and alcohol abuse – intentional tort – outside scope of Civil Liability Act 2002 – common law applies TORTS – sexual assault – child assaulted by adult over 40 years ago – effects of sexual assault, drug and alcohol abuse, and medication upon memory DAMAGES –general damages – interest upon past general damages – out-of-pocket expenses – economic loss and future loss of earning capacity – no evidence of earning rates DAMAGES – effect of payment of victims compensation by defendant – damages assessed without reference to payment - reduction in judgment to reflect payment – ss 55, 74 and 102 Victims Rights and Support Act 2013 (NSW)
Legislation Cited:	Civil Liability Act 2002 Court Suppression and Non-Publication Orders Act 2010 Victims Rights and Support Act 2013
Cases Cited:	State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 Upadhyaya v R [2017] NSWCCA 162
Category:	Principal judgment
Parties:	P (a pseudonym) (Plaintiff) D (a pseudonym) (Defendant)
Representation:	Counsel: K Andrews (Plaintiff) P Glissan (Defendant)   Solicitors: Wyatts Lawyers & Advisors (Plaintiff) Philip Cox (Defendant)
File Number(s):	2017/333497
Publication restriction:	1 Order, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, directing that there be no publication of the name or address of either party or any information tending to reveal the identity or address of either party upon the grounds that: (a) the order is necessary to avoid causing undue distress or embarrassment to the plaintiff who was the victim of offences of a sexual nature committed by the defendant, when the plaintiff was a child; (b) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

Judgment

Introduction

1. By an Amended Statement of Claim filed on 26 September 2018 during the hearing the plaintiff P sued the defendant D for damages at common law caused by indecent assaults committed upon P by D between 1 January 1972 and 31 December 1975. At the time P was a child and D was an adult.

2. Because of the nature of the cause of action I made a non-publication order during the trial and this judgment will use pseudonyms for the names of the parties and for any other details which might indirectly identify the plaintiff.

3. The events pleaded in the Statement of Claim happened, on any view, over 40 years ago. In making factual findings I keep in mind that so long after the event, neither party could have an accurate memory of the detail of what occurred. I also keep in mind that P was a child at the time and that his memory for events would have been affected by the sexual abuse itself, by his subsequent abuse of alcohol and drugs, and by medication he has been prescribed for depression. The only expert witness called in the case, Dr Parmegiani, a psychiatrist, gave evidence that P’s memory would be affected in this fashion.

4. While there are a large number of agreed background facts, the issues in dispute which have to be determined are:

1. When did the abuse by D occur?

2. What was the extent of the abuse by D?

3. What have been the effects of the sexual abuse of P?

4. What damages should be awarded to P?

5. What is the effect of payments of victims compensation to P?

6. What costs should be awarded in relation to the late amendment of the Statement of Claim?

Facts Not in Dispute

5. P was born in late 1960 and finished primary school in 1972. He lived with his family in W suburb. The family later moved to G suburb. In 1973 P commenced high school in what was then called First Form. He was 12 years of age.

6. P as a child had a keen interest in mini bikes. While still at primary school P’s parents bought him a mini bike. D was involved with an interdenominational organisation and also had an interest in mini bikes.

7. P attended a mini bike camp, when he was a child. D was an adult leader at that camp. During a night at that camp P awoke to find D touching him inside his sleeping bag and playing with his penis. D did not say anything to P and P simply froze. After a while D stopped the indecent assault.

8. At the end of the weekend camp D drove P back to D’s house in L suburb. D took P into his photographic darkroom. Inside that room D played with P’s penis causing him to become erect. D masturbated P’s penis for 10-15 minutes until P ejaculated. After this incident P was taken home and did not speak to his parents about what had occurred.

9. On one other occasion D masturbated P while they were in the bedroom of P’s house in L suburb.

10. After about six to nine months contact between P and D simply ceased.

11. D had mini bikes at his house in L suburb. Adjacent to the house was some vacant land on which mini bikes were ridden by young people who came to D’s house. P was one of the young people who came to the house and rode mini bikes on the vacant land next door.

12. In 2015 D was indicted on three counts of committing an act of indecency on P. These were the three assaults referred to above, the first being at the mini bike camp, the second being in the darkroom at the end of the weekend of the mini bike camp, and the third being at a later date in the bedroom of the house of D.

13. D appeared before the District Court and pleaded guilty to those three charges, upon the basis of an Agreed Statement of Facts.

14. D was born in early 1951, so in any view of when the events occurred, he was an adult in his 20s at the time of the commission of the indecent assaults.

15. When P was at high school, he was subject to regular and serious sexual abuse by a teacher. This occurred in First Form, Second Form and Third Form. P left high school aged 14 years and 7 months in Third Form, because of the abuse by the teacher.

16. A detailed history of the abuse by the teacher is set out in P’s statement given to the police in 2004. This statement is part of Exhibit PX4. I take into account all of the detail in that statement, but in summary the abuse consisted of the following acts:

1. P was dyslexic when he commenced high school and was kicked out of a lot of classes because of his behaviour. He spend a lot of time wandering around the school grounds.

2. One of P’s school friends introduced him to the teacher who became his abuser. The teacher befriended P even though he was not one of his students.

3. In First Form the teacher took P to the woodwork classroom storeroom. The teacher fondled P’s genitals and then performed oral sex on him.

4. Similar incidents occurred once or twice a week during the last six months of First Form, which was in 1973.

5. By the end of First Form the teacher was taking P to the cadet room where the teacher performed oral sex on P causing P to ejaculate. The teacher masturbated himself to ejaculation.

6. The abuse by the teacher continued during Second Form in 1974. The teacher was taking P to the teacher’s residence. The teacher performed oral sex on P and masturbated himself to ejaculation.

7. In Second Form P commenced to stay at the teacher’s house, sometimes for the weekend. At this time P’s father was very ill and was spending months in hospital. Abuse continued on these weekends.

8. P never told his parents what was going on. His father was very ill and he feared that if he told his parents it would kill his father.

9. Late in Second Form (1974) the teacher and P went away to a sporting event out of Sydney, where the teacher performed oral sex on P.

10. In Second Form the teacher and P went to the school cadet camp. Each night the teacher performed oral sex on P.

11. In Third Form the level of the assaults changed. P was having anal sex with the teacher. P was the active participant, at the request of and with the encouragement of the teacher.

12. The teacher bought a mini bike for P and this was stored in the cadet room at school.

13. Towards the end of Third Form in 1975 a school friend started to suspect what was going on between the teacher and P. Rumours went around the school and P was then bullied and became involved in fights. He left school in late 1975 when he was not quite 15 years of age.

17. P initially worked as a shop assistant at a retail store and then started a trade as a spray painter.

18. P married when he was 21 and divorced in 1998. There were two children of this marriage.

19. In 2004 P attended a Police Station and reported the abuse by both D and the teacher. The police proceeded with action against the teacher, but advised P that they could not prosecute D because it was only P’s word against D.

20. The teacher eventually committed suicide.

21. In 2013 another complainant against D came forward. The police contacted P and asked him to make a statement in relation to the abuse by D, which he did. This led to the eventual prosecution of D and to his pleas of guilty to three charges of indecent assault.

When did the abuse by D occur?

22. Dr Parmegiani, psychiatrist, provided a medico-legal report dated 12 March 2018. He was asked to assume that the abuse by D occurred earlier in time than the abuse by the teacher in high school. He was also asked to assume that P’s behaviour changed for the worse after the initial abuse by D, which was said to have occurred in primary school, and which pre-dated the abuse by the teacher in high school.

23. Dr Parmegiani said:

“Based on the history obtained from [P], as detailed in the sections above, and his description of his changes in behaviour after the initial abuse by [D] between 1 January 1972 and 31 December 1973, it is my opinion that [P] developed symptoms consistent with a chronic trauma syndrome, characterised by persistently dysphoric mood, poor temper control and a tendency to abuse alcohol and cannabis from an early age.

The consequences of the initial abuse most likely led him to isolate himself while in high school, and to therefore become more easily preyed upon by the second abuser, a school teacher who befriended him.

To the best of my knowledge, there were no pre-existing injuries before the initial abuse while [P] was in primary school.

The subsequent sexual abuse that he experienced while a student in high school contributed to the perpetuation of [P’s] issues of chronically dysphoric mood, poor temper control and a tendency to misuse substances. It is therefore my opinion that they contributed to [P’s] inability to successfully deal with the issues precipitated by the first experience of sexual abuse.”

24. The original Statement of Claim pleaded abuse by D between 1 January 1972 and 31 December 1973. That was amended during the hearing to substitute the period 1 January 1972 to 31 December 1975. The need for this amendment became apparent after counsel for the defendant outlined the defence, and commenced cross-examination of the plaintiff. The case for D was that he was not the first abuser in time, and that his abuse was coincident in time with the abuse by the teacher. Of course, determination of that issue has a great bearing upon the weight to be given to the opinion of Dr Parmegiani expressed above.

25. The plaintiff gave evidence that he attended the local primary school when he was living in W suburb with his parents. He said that he had a happy childhood and enjoyed school. He had an interest in mini bikes.

26. P said that he met D through the cubs. I do not accept this evidence. While P might have been in the cubs, D gave evidence that he had never been in or associated with the cubs. Further, there was no documentary or oral evidence to suggest that D ever had anything to do with the cubs.

27. The plaintiff said that he went to a mini bike camp while he was still at primary school, so he would have been about 12 years old. He did not remember how he got to the camp and nominated two suburbs where it could have been. One suburb was in far western Sydney and the other was in northern Sydney, a long way from each other.

28. P gave evidence of the abuse which occurred at the camp, and that matter is not in dispute. He said that the abuse continued for 15 or 20 minutes. He felt scared.

29. P gave evidence that D drove him from the camp to D’s home at L suburb. P gave evidence about the abuse which occurred in the photo lab, and this is a matter not in dispute.

30. P said that he saw D about two weeks later, again at D’s house and that he was again molested in the same fashion. This took place upstairs in the bedroom.

31. P said that over the next six to nine months D committed indecent assaults on him every week to two weeks. All of these occurred at D’s home. This was a matter in dispute between the parties.

32. P gave evidence about the abuse he suffered at high school, committed by the teacher. He was not challenged concerning his evidence of abuse by the teacher in Form One, Form Two and Form Three (1973-1975) and that the abuse constituted both oral sex and eventually anal sex.

33. P was cross-examined about where he lived at crucial times. He said that he thought that he moved with his parents from W suburb to G suburb in about 1973. Documents from the Land Titles Office show that P’s evidence cannot be accepted. His parents sold the property in W suburb and moved to G suburb in January 1977. By that time the plaintiff no longer attended high school.

34. The plaintiff gave evidence in chief that D came to the family home on one occasion and talked to P’s father. The conversation had something to do with P going overseas for a lengthy period on a scientific expedition. P was cross-examined about this. He said that this conversation took place at the family home in W suburb. It was suggested, and later proved by documentary evidence, that the overseas expedition was one which D undertook in 1976.

35. P said that he was first assaulted by D while he was a primary school student and that the further assaults took place over a period of six to nine months. This would have put the assaults commencing in 1972 and terminating in 1973. He gave evidence that he never saw D again after D simply ceased contact with him at the end of that six to nine month period. This would have been, on P’s evidence, in 1973.

36. However, the conversation about D travelling overseas on the scientific expedition was one which was said to have occurred during the period of six to nine months when P was being assaulted by D. Since the scientific expedition took place in 1976, the probability is that the conversation between D and P’s father about the expedition occurred in 1975.

37. This conversation about the overseas expedition is a critical matter in determining just when it was that the assaults occurred. It is highly unlikely that D was speaking to P’s father three years before the scientific expedition took place, although that is a possibility. I find that it is more probable that the conversation about the overseas expedition occurred at the latest in the year prior to the expedition itself. This puts the conversation in 1975.

38. The year 1975 was P’s last year at high school when he was in Third Form. By 1975 the abuse by the teacher at the high school had been going on for two years.

39. There was further evidence which bore upon the question of when the abuse committed by D took place. P gave evidence which was unchallenged that apart from the first instance at the camp, all of the indecent assaults upon him occurred at D’s home in L suburb.

40. Documents from the Land Titles Office showed that D did not become the registered proprietor in L suburb until November 1973. Further documents showed that prior to that time D lived in a different suburb.

41. By November 1973 P was already being abused at high school by the teacher, as this abuse commenced midway through First Form i.e. half way through 1973.

42. Since the second indecent assault by D upon P occurred at the property in L suburb, and since that was at the end of the weekend where the first assault occurred at camp, both the camp and the first and second assaults could not have occurred before November 1973 at the earliest.

43. There was other material which was relevant to the issue of when the assaults by D were committed. There was a bank statement of D which ran up to 9 November 1973, which showed D living at an address in another suburb. A further bank statement of D covers November 1973 to December 1973, is addressed to the address of D in L suburb, and carries entries which clearly relate to the settlement of that purchase in November 1973.

44. Documents were produced on subpoena by the interdenominational organisation which held the mini bike camp. D is listed as a person involved in the organisation of that camp during the year 1974. He prepared a document for submission to the local Council seeking permission for the camp.

45. The minutes of the interdenominational organisation record a meeting in October 1974 which discussed D meeting with Council that month to discuss the use of mini bikes at the camp site.

46. The interdenominational organisation produced on subpoena a brochure for four camps of one week each involving mini bikes. Those camps commenced on 13 December 1974 and concluded on 17 January 1975. A typewritten document produced on subpoena showed the name of D as one of the leaders at three of the camps, being those which ran between 27 December 1974 and 17 January 1975.

47. Finally, a copy of a letter from the interdenominational organisation dated 21 May 1975 to D was produced, concerning reimbursement of D for monies spent in relation to food and spare parts for the mini bikes at the camp.

48. Counsel for the plaintiff submitted that some of those documents suggested that there had been a camp run by the organisation a year earlier involving mini bikes. While that is so, no documents were tendered by either side, from a large volume of documents produced on subpoena by the organisation, to suggest that there was a camp a year before and in particular no documents were tendered to suggest that D was involved with an earlier camp.

49. For P it was submitted that he remained firm in his assertions that the assaults by D commenced when P was a primary school student in 1972. On that evidence the assault by D pre-dated the assaults and abuse by the teacher at high school. The opinion of Dr Parmegiani was that it was important to establish the timeline of the assaults and that if the assaults by D happened earlier in time, then they could well have led to P being more vulnerable to the depredations of the teacher at high school. If that was established then the damages would be greater against D, because while P’s psychiatric condition, on the evidence, has precipitated by a combination of the abuse committed by D and the abuse committed by the teacher, the abuse by D had a more serious effect if it was committed earlier in time.

50. There is some force in the submission of counsel for the plaintiff that while it is understandable that P was wrong about some of the detail of the assaults, given their antiquity and given the other factors outlined by Dr Parmegiani in relation to sexual assault victims, one could place faith in P’s assertion that it was at primary school that D assaulted him. However, the independent objective evidence in the case suggests that the assaults by D, which lasted for six to nine months, were being committed at the same time as the assaults upon P by the teacher, which ran from mid-1973 to November 1975. Just where in that period D’s assaults were committed it is impossible to say. I find as a fact that D did not assault P when he was in primary school and that the assaults by D upon P were committed when P was in high school, and while in the same period P was being assaulted by the teacher.

What was the extent of the abuse by the defendant?

51. D admitted the three indecent assaults which were the subject of the criminal charges. He denied that there had been other assaults committed at his home. The evidence of P was that there were regular instances of assault committed upon him by D in the bedroom of D’s home at L suburb.

52. In his 2013 statement to the police, P had made this allegation of the assaults continuing “quite regularly, once every few weeks”.

53. D was cross-examined about whether there were more than three instances of indecent assault. Several times he fell back upon repetition of the fact that he had only pleaded guilty to three charges of indecent assault. This of course was not an answer to questions about whether he had committed assaults on other occasions.

54. In examination-in-chief D said that he recalled the first assault which occurred at the mini bike camp, and that while he had admitted to other offences occurring at his home in L suburb, he now had no recollection of committing those offences.

55. The following occurred in cross-examination at T 119:

“Q. What I want to suggest to you is that, apart from the two offences that are referred to in the criminal proceedings at your house, [P] attended there on other occasions and you molested him on other occasions.

A. I don't believe that would be the case. I don’t--

Q. You can’t deny it because you can’t remember it, can you?

A. I have pleaded guilty to three counts.

HIS HONOUR

Q. [D]

A. Yes.

Q. You are obliged to answer questions put to you--

A. Yes.

Q. --by counsel, unless there’s some objection to them. You’re obliged that question. What’s your answer?

A. Could you repeat the question please?

ANDREWS

Q. You can’t deny what I put to you about abusing [P] on other occasions because you can’t remember him being there, can you?

A. I can't remember him on specific occasions being there, but I can't remember when it was that - the exact date that I abused him.

Q. You don’t remember how many times?

A. I remember at least twice.”

56. P has been consistent in his allegations that the assaults were more than three in number and were committed on a regular basis at D’s home in L suburb. By contrast, D initially said that he could not now remember the second and third assaults to which he pleaded guilty, but later agreed in cross-examination that he remembered assaulting P at his home “at least twice”. D recalled that P had been at his house more than twice, as he came to ride mini bikes.

57. I formed an unfavourable impression of D in relation to answering questions about the detail of the assaults he committed upon P. He kept reciting that he had only pleaded guilty to three offences, rather than answering questions about whether there were more. His memory too has been affected by the passage of time. That does not explain why in examination-in-chief he said that he could not remember the second and third assaults to which he pleaded guilty, but by the time he was cross-examined he remembered them. I do not accept the evidence of D in this regard.

58. I accept the evidence of P and find that besides the three indecent assaults to which D pleaded guilty, D assaulted P in the bedroom in D’s home in L suburb on a regular basis every few weeks for a period of six to nine months after the first assault at the mini bike camp.

What have been the effects of the sexual abuse of P?

59. The evidence about the suffering of the plaintiff and his present condition comes only from two sources. The plaintiff gave evidence and there is a medico-legal report from Dr Parmegiani. It is surprising that in a case where the plaintiff has had a long history of treatment by Dr Grant a psychiatrist and Ms Gallart, a psychologist, no reports were tendered from those practitioners and nor were any of their notes. On the part of the plaintiff’s representative this must have been a deliberate forensic decision. On the part of the defendant, the lack of contemporaneous medical material came about because of non-compliance with the rules and directions concerning service of evidence.

60. Thus the court is left in the position of trying to assess the effects of the abuse, and consequently compensation for those effects, without the benefit of any material from practitioners who have been treating the plaintiff on multiple occasions as far back as 1992.

61. The plaintiff gave evidence that by the time he got to high school he was “out of control”. He said he was an angry person and a lot of people used to put that down to his father being sick. After leaving high school at an early age the plaintiff had difficulty with several jobs because of his poor temper control. He said, and I accept, that he thinks about what happened to him in the sexual abuse “every single day of my life”. He said that he always wanted to do something about it but he didn’t want to get himself into trouble.

62. The plaintiff gave evidence that in 1981 he was married and that during the 17 years his marriage lasted “it was very on again, off again”. The relationship with his wife was very tense. He had a lot of fears for his own children. He did not want them left anywhere. His ex-wife used to do nightshifts and she would take the children and leave them at the hospital where she worked. This upset P greatly. The plaintiff sees his daughter about once every six months but does not see his son at all.

63. In 2004 the plaintiff was diagnosed as suffering from major depression. He commenced to receive a disability support pension in about 2004 and has been receiving it ever since.

64. The plaintiff gave evidence that when he was a child, in his early teens, he used to abuse alcohol and write himself off every weekend. The plaintiff has consumed marijuana his whole life. He had a high level of consumption and occasionally used it along with heavier drugs mixed with marijuana – a practice which he called “snow-coning”. He was never an injector of hard drugs. The plaintiff had tried to commit suicide.

65. The plaintiff described having a “breakdown” in about 2003. However, the schedule of out-of-pocket expenses discloses that as early as 1992 he was seeing Dr Grant, psychiatrist. This was in Queensland. The plaintiff had been taking anti-depressants since his 20s.

66. The plaintiff commenced seeing Ms Gallart, psychologist, in about 2005. Before that he saw another psychologist Ms Davis. He has seen Ms Gallart about once a month.

67. The plaintiff still takes anti-depressants and says that he was not good with people. He does not trust people and he is a loner who just likes being left alone. He is greatly upset that he has lost contact with his children. He rarely speaks to his brother but speaks often to his sister who is seriously ill.

68. There was no cross-examination at all about the evidence summarised above. Rather, counsel for the defendant focussed upon the issue of when the abuse committed by D occurred in relation to the abuse by the teacher in high school.

69. Dr Parmegiani saw the plaintiff in February 2018 and provided a report dated 12 March 2018. He had a 1.5 hour consultation with the plaintiff. Dr Parmegiani was given background material including the statements made by P to the police, and the Agreed Statement of Facts upon which D was sentenced. Dr Parmegiani was asked to assume that the abuse committed by D had occurred earlier in time, and reported that P also gave him this history during the consultation. The opinion of Dr Parmegiani was thus based upon an assumption that the abuse by D occurring earlier in time, and as recited in the extracts above, resulted in Dr Parmegiani coming to the view that the abuse by D led to P becoming “more easily preyed upon by the second abuser”.

70. Dr Parmegiani expressed the view that the abuse by the teacher contributed to the perpetuation of P’s mood, poor temper control and substance abuse. Both periods of abuse contributed to P’s current condition.

71. Dr Parmegiani was of the view that all residual symptoms of P could now be regarded as permanent. He thought that P needed to continue with psychological counselling on an indefinite basis. He suggested that this should be monthly at a cost of $220 to $240 per session.

72. Dr Parmegiani noted that P had not consulted with a psychiatrist since 2005 due to financial constraints, but thought that he should see a psychiatrist again, needing 12 consultations over the next two years at $350 per session. The cost of medication could vary between $40 and $300 per month.

73. As to economic loss, Dr Parmegiani said:

“With regards to employment, I acknowledge that [P] had managed to train as a spray painter and to keep employment until 2004. Since the acute deterioration in his mental state in 2004, he has remained unable to return to work. Based on his current clinical presentation, the time spent out of work, and also considering his age, I believe it will be most unlikely for [P] to return to the job market in the future. I would therefore regard him as being permanently and totally incapacitated for employment by the nature of his psychiatric injuries.”

74. Dr Parmegiani was provided with a letter from Ms Gallart the treating psychologist. That letter from Ms Gallart to an earlier firm of lawyers said:

“Following a discussion with [P], I am unable to provide you with a copy of his file.”

75. I accept the evidence of P about the effects of the sexual abuse upon him, which have been ongoing for over 40 years and which are permanent. I accept the opinion of Dr Parmegiani that a combination of the abuse by two predators has led the plaintiff to be in his present state. There was no cross-examination and no evidence to establish any other cause for the plaintiff’s psychiatric state.

76. I find that the combined effect of the sexual abuse by D and the teacher have left the plaintiff with a severe psychiatric disability which has required extensive treatment and medication over the years.

77. The court must make a finding in relation to the effect of the abuse by D, as compared to the abuse committed by the teacher. I have already found as a fact that D was not the first abuser in time. Rather, the abuse by D occurred for a shorter period than that committed by the teacher; it occurred at some time during the longer period of abuse by the teacher; and the abuse was at a lower level than that committed by the teacher.

78. These propositions were put in cross-examination of Dr Parmegiani by counsel for the defendant. The doctor said that in terms of severity, the degree of abuse by D seemed to be lesser than the abuse by the teacher. He agreed with the proposition that the abuse by the teacher “would have had a very substantial effect upon [P]”. He also accepted the proposition that the effect of any abuse by D would be less than the effect of the abuse by the teacher.

79. It is unrealistic to expect that the court could apportion the effects with mathematical precision. The best I can do is to find, in accordance with that opinion of Dr Parmegiani, that because the abuse by D was at a lower level than that of the teacher, was for a lesser period of time than that of the teacher, and was coordinate in time with that of the teacher, the present psychiatric state of P which is attributable to abuse is one caused more by the teacher than by D.

What damages should be awarded to the plaintiff?

80. Damages fall to be assessed at common law as the intentional tort of sexual assault falls outside the provisions of the Civil Liability Act 2002. This matter was agreed. The plaintiff is entitled to be compensated for his pain, suffering and loss of enjoyment of life. Counsel for the plaintiff also made the submission, which I accept, that general damages must include compensation for the assaults per se, as well as the ongoing effects of the assaults.

81. The indecent assaults committed by P upon D were committed over a period of six to nine months. They included not only the three indecent assaults to which D pleaded guilty, but also ongoing assaults involving D fondling and masturbating P every few weeks at his home in L suburb. On my findings the plaintiff was a child of 13 or 14 years of age at the time. The defendant was an adult who the plaintiff regarded as a leader and was someone who he looked up to.

82. I have recited above the evidence of the plaintiff regarding the effects of the assaults upon him. As indicated, I have accepted his evidence about this matter, particularly as it was not challenged by counsel for the defendant.

83. I must take into account that as a result of my findings of fact, the effects of the assaults committed by D were less than the effects of the abuse committed by the teacher. I also take into account that the number of assaults committed by D were less than the number committed by the teacher, and that the acts committed by the teacher upon P were even more heinous than those committed by D.

84. Had I been assessing general damages for the totality of the sexual assaults upon P, and the effects of those assaults upon him, as if there were only one perpetrator, I would have assessed general damages at $360,000.

85. Taking into account the matters recited above, and keeping in mind that P is entitled to be compensated for the assaults per se, as well as their sequelae, I have come to the view that I should award general damages of one-third of that amount, being $120,000.

86. The plaintiff is entitled to interest upon past general damages. Having regard to the length of the time since the assaults, and the current age of the plaintiff, I assess interest upon past general damages of $90,000. I will apply the rate of 2% over 44 years. The calculation is: $90,000 x 0.02 x 44 = $79,200. This will be the award for interest on past general damages.

87. The plaintiff tendered a schedule of expenditure upon medical treatment. It added up to $12,648.75. That treatment has been necessary as a result of assaults by both predators. Consonant with my finding in relation to general damages, I will award one-third of that amount being $4,216.25.

88. As to future out-of-pocket expenses, I have already indicated that I have accepted the evidence of Dr Parmegiani about the need for treatment by a psychologist, a psychiatrist and for medication. The plaintiff’s Schedule of Damages (MFI 5) has calculated the cost of a psychologist for the future at $55,036.64, the cost of a psychiatrist for next two years at $4,013.77, and the cost of medication at $100 per month at $22,926.96. I have checked these figures and all are based upon calculations in accordance with the evidence I have accepted about necessary future out-of-pocket expenses. The total of those figures is $81,977.37.

89. Consonant with my ruling in relation to general damages, I will award one-third of that amount being $27,325.79.

90. For past economic loss counsel for the plaintiff submitted that I should award $150,000 plus $16,500 for superannuation on past economic loss. This was very much a global figure and no calculations were provided. It is noted again that the plaintiff has been in receipt of a disability support pension since 2004 but that he worked up to that time.

91. Counsel for the defendant submitted that there are other factors at play which caused the plaintiff not to work. He submitted that there was exposure to fumes as a spray painter, which had caused concern to the plaintiff. In any event, the plaintiff would have had the capacity to do a large number of other jobs if he had not been so badly affected psychiatrically. Counsel for the defendant made reference to the plaintiff’s age, but while a person of the plaintiff’s present age may have some difficulty getting back into the workforce, I have found that his capacity to engage in remunerative work has been destroyed at a much earlier age by the overall sexual abuse. In this regard I accept the evidence of the only expert called being Dr Parmegiani. Counsel for the defendant submitted that there was no connection between the abuse perpetrated by D and the plaintiff’s capacity for employment. I reject this submission as I have accepted the view of Dr Parmegiani, referred to above.

92. Underlying the lump sum of $150,000 submitted by counsel for the plaintiff was the primary submission that the abuse by the defendant had a greater effect than the abuse by the teacher. I have found the opposite. I was presented with no evidence about the plaintiff’s earnings when he worked between leaving high school in 1975 and his breakdown and major depression in 2004. Nor was there any evidence of what can be earned today by a spray painter or someone in a similar trade.

93. The medical evidence shows that the plaintiff’s earning capacity since 2004 has been nil. Further, it is not going to improve. The court has to do the best that it can to provide compensation which is adequate to the plaintiff and fair to the defendant, based on the limited evidence available. In State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 at [87] the court said:

“In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages.”

94. While the authorities permit the court to assess damages for past economic loss and future loss of earning capacity by a lump sum cushion or buffer, I am reluctant to do so where the figure is as large as that suggested by counsel for the plaintiff. If I selected such a figure and made some sort of ex cathedra pronouncement of the number, how could the defendant know how I had reached such a conclusion? Further, if either party wished to appeal against such a lump sum award, how would the appellate court know why I had chosen that figure? In any event, how can any trial judge simply intuit such large lump sums for past and future economic loss?

95. The approach I will take in respect of both the past and the future, is to consider nett average weekly earnings (AWE) as a guide to calculation of damages. Such earnings are available in published damages assessment books regularly cited to and by courts. The base numbers of course come from the Australian Bureau of Statistics. Rates of personal taxation are matters of law which must be taken into account, as damages for economic loss are calculated on a nett of tax basis.

96. The plaintiff had a trade and a long work history before he became disabled in 2004. I regard nett AWE as relevant to, but not determinative of, the income he has lost and will lose.

97. In 2004 nett AWE earnings were $735.17. Today nett AWE are $1,177.25. The average of those two figures is $956.21. I have already found that one-third of the plaintiff’s damages for pain, suffering and loss of enjoyment of life are attributable to the sexual abuse committed by the defendant. Consonant with that decision, I find that one-third of the plaintiff’s past economic loss is attributable to the actions of the defendant. One-third of nett AWE for past loss is $318.74 per week. A theoretical calculation of past loss is thus: $318.74 x 52 weeks x 14 years = $232,042.

98. Against that theoretical calculation, the figure of $150,000 for past economic loss sought by counsel for the plaintiff seems appropriate. If anything it may be conservative. Further I note that at common law the plaintiff would be entitled to interest upon such past economic loss, but none is sought. My award for past economic loss will be $150,000.

99. As to future loss of earning capacity, I will make a similar theoretical calculation to test out the submission of counsel for the plaintiff that there should be a second lump sum of $150,000. Again, this was a buffer figure unsupported by any calculations. If nett AWE are presently $1,177.25 then one-third of this figure is $392.42. The plaintiff would have 10 more years of working life had he not been disabled by his psychiatric condition. The multiplier on the 3% discount table applicable at common law is 451.8. There should also be a 15% discount for the vicissitudes of life. On this basis the theoretical calculation for future loss of earning capacity is: $392.42 x 451.8 x 0.85 = $150,701.04. Again there has to be some downward reduction from this point, to take account of the plaintiff’s dyslexia and low educational achievements. It seems to me that an appropriate lump sum figure for future economic loss is $100,000. That will be the award.

What is the effect of payments of Victims Compensation to the plaintiff upon the award?

100. The plaintiff obtained and was paid an award of $10,000 under the Victims Rights and Support Act 2013 (NSW). A restitution order was made under that Act against D and D paid $8,000 to the Victims Support Fund.

101. For the defendant it was submitted that the damages to be awarded to the plaintiff should be reduced by $10,000, or in the alternative by $8,000.

102. As to the $10,000 paid from the Victims Support Fund, s 55 of the Victims Rights and Support Act 2013 provides:

“(1)   This section applies to civil proceedings commenced or maintained in respect of an injury or loss sustained by a person to whom the giving of victim support has been approved under this Part on the basis of the same facts as those on which the civil proceedings are based.

(2)   Subject to sub-section (3), approval of the giving of victim support does not affect a person’s right to commence or maintain civil proceedings, and damages in civil proceedings must be assessed without regard to the approval.”

(Emphasis added)

103. In relation to the payment of $8,000 by D, s 74 of the Victims Rights and Support Act 2013 provides:

“(1)    This section applies to civil proceedings in respect of an injury or loss sustained by a person to whom an approval for the giving of victim support has been given under Part 4 (being an approval in respect of which an order for restitution has been made) on the basis of the same facts as those on which the civil proceedings are based.

(2)   An order for restitution does not affect a person’s right to commence or maintain civil proceedings, and damages in the civil proceedings must be assessed without regard to the order.”

(Emphasis added)

104. I have assessed the plaintiff’s damages in accordance with s 55 and s 74 of the Victims Rights and Support Act 2013. However s 102(3)(a) of the Victims Rights and Support Act 2013 provides that the judgment of the court in civil proceedings “must not be entered in respect of so much of the amount of the damages assessed by the court is equivalent to the sum of the amounts that have been paid under the direction for compensation”. Thus the plaintiff cannot recover the $8,000, paid by the defendant under a direction for compensation, twice.

105. In Upadhyaya v R [2017] NSWCCA 162 at [11] the Court of Criminal Appeal said that the evident purpose of s 102(3)(a) is “to prevent double compensation where amounts have been paid”. I will therefore deduct $8,000 from the damages that I would have otherwise awarded, effectively giving the defendant a credit for this amount so as to ensure that it is not recovered twice by the plaintiff.

106. In accordance with s 102(3)(a) of the Victims Rights and Support Act 2013 I will deduct $8,000 from the assessed damages and give judgment accordingly.

What costs should be awarded in relation to the late amendment of the Statement of Claim?

107. The form of the original Statement of Claim and the circumstances in which it was amended are set out above. Counsel for the defendant sought an order that the plaintiff should pay the defendant’s costs right up until the amendment of the Statement of Claim, which was on the first day of trial. Counsel indicated, as the tender of evidence demonstrated, that there was a lot of work done on behalf of the defendant to prepare for a trial where the allegation of sexual assault was limited to a period expiring on 31 December 1973.

108. When the amendment was allowed, and the case progressed, all of that material was still put into evidence. I am referring to the documentary evidence regarding the dates on which properties were bought, the interdenominational mini bike camp was held and D’s scientific expedition trip took place. However, it seems to me that all of that material would have been tendered anyway, even if the plaintiff’s Statement of Claim had remained in its original form. The purpose of the tender of that material was to show, not that D never assaulted P, but rather that the admitted assaults, three in number, occurred while the P was in high school and was being concurrently molested by the teacher. This was an important issue in the case and one upon which, if D succeeded, the damages awarded would be significantly reduced.

109. I fail to see why the work done to prepare for trial on the part of D prior to the amendment of the Statement of Claim on the first day of trial, was wasted. It was material which was needed to defend P’s claim either in its original form, or in its form slightly amended at the trial.

110. However, I am of the view that the plaintiff should pay the defendant’s costs thrown away by reason of the amendment. These costs would really be no more than the costs of preparation and filing of the Amended Defence. My order will be that the plaintiff pay the defendant’s costs of the Amended Defence filed on 26 September 2018.

Conclusion

111. There will be judgment for the plaintiff against the defendant for the following heads of damage:

HEADS OF DAMAGE	AMOUNT
General damages	$120,000.00
Interest on past general damages	$79,200.00
Past out-of-pocket expenses	$4,216.25
Future out-of-pocket expenses	$27,325.79
Past economic loss	$150,000.00
Future loss of earning capacity	$100,000
Sub-Total	$480,742.04
LESS Paid by defendant	$8,000
TOTAL	$472,742.04

Orders

112. My orders are:

1. Judgment for the plaintiff against the defendant for $472,742.04.

2. Order the defendant to pay the plaintiff’s costs, save that the plaintiff is to pay the defendant’s costs of the Amended Defence filed on 26 September 2018.

3. Grant leave to the parties to approach my Associate within 7 days if any different costs order is sought.

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Decision last updated: 04 October 2018