PCB v Geelong College

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2020 01610

PCB	Plaintiff
v
THE GEELONG COLLEGE	Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATES OF HEARING:	17, 18, 19, 20, 23, 24, 25 & 26 August and 3 September 2021
DATE OF JUDGMENT:	1 October 2021
CASE MAY BE CITED AS:	PCB v Geelong College
MEDIUM NEUTRAL CITATION:	[2021] VSC 633

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PERSONAL INJURIES — Institutional abuse — Whether perpetrator employee — Vicarious liability — Duty of care — Breach of duty — Damages — Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 considered — A & B v Bird [2020] NSWSC 1379 considered — The Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Reports 81-399 considered — Wrongs Act 1958(Vic) Part VB.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	FM McLeod SC with T Hammond	Rightside Legal
For the Defendant	JT Rush RFD QC with RL Kaye	HWL Ebsworth

HIS HONOUR:

A Introduction

The plaintiff was born on 12 February 1975. He is the youngest of three brothers. He attended primary school in Geelong, where his family lived. His parents worked in education. The family was close and supportive. In 1987, he commenced in Year 7 at Geelong College. His older brothers also attended the school.

In late 1988, when he was in Year 8, the plaintiff first attended the ‘House of Guilds’, which was on the grounds of the senior campus of the school. The plaintiff was then at school at the junior campus, which was nearby. The plaintiff attended the House of Guilds after school.

Broadly speaking, the House of Guilds was a building or complex of spaces fitted out to facilitate woodwork, ceramics and other crafts. It was open to students of the school and could be attended out of school hours. It was also open to students of other schools and members of the community upon the payment of a membership fee. The particular part of the House of Guilds at the focus of the present case was the ‘woodwork room’.

Bert Palframan was an honorary member of the House of Guilds. He attended the woodwork room regularly, although several witnesses gave evidence that he did not seem to be working on his own projects while he was there.

Palframan was in his early 70s at the time, and passed away in about 1999. The plaintiff contended that Palframan should be taken to have been, in effect, an employee of the school, however it is not apparent that he was ever trained as a teacher and he did not have any formal status as a teacher paid by the school.

It is not in dispute that on many occasions in the period between late 1988 and mid-1990 the plaintiff was sexually abused by Palframan. In essence, he was ‘groomed’ at the House of Guilds and the acts of abuse then came to occur in a ‘process’ that regularly commenced in the ‘woodwork room’ and continued in Palframan’s car and then at his unit in Geelong. On one occasion, abuse took place in the plaintiff’s own home.

In this period, Palframan sought to and did develop a friendship with the plaintiff’s parents. In mid-1990, when the plaintiff was in Year 10, the plaintiff refused the abuse and it ceased.

The plaintiff gave evidence that he felt deep shame about the abuse, which continues to this day. He kept the abuse a secret until an incident in 2007 referred to further below.

The plaintiff’s case was that the abuse affected him significantly in his schooling and in many ways since. He became angry and withdrawn and ‘haunted’ by thoughts of it. At some point, the plaintiff set himself to become ‘successful’.

The plaintiff completed VCE in 1992 and commenced a Bachelor of Commerce at Deakin University in Geelong. He failed quite a few of his subjects at that time and discontinued in 1995. He said that he had been ‘kicked out’.

In 1996, the plaintiff undertook a traineeship at the Carlton Football Club. That did not go well for him either. He was living in Melbourne at that time, but later moved back to Geelong.

The plaintiff re-enrolled in his Bachelor of Commerce and completed it in 2000.[1] In that period, it seems that he worked part time at the Eureka Hotel in Geelong. At some point he seems to have commenced to work there essentially full time and at one point was the nominee.
[1]Exhibit R.

The plaintiff met his now wife at the Eureka Hotel. She also worked behind the bar and was also studying commerce at Deakin. She is two years older than the plaintiff. They were married in early 2007. She now holds a senior position with a health insurer and gave evidence at the trial.

In late 2004 and with the encouragement of his now wife, the plaintiff ceased working at the pub and commenced working in sales and then management with a liquor company, Diageo. He held several positions with that company and had one or more promotions.

In mid-2007, while working with Diageo, the plaintiff attended a training course in Sydney and suffered a form of breakdown. He had thoughts of self-harm and harming others. He gave evidence that he experienced nightmares relating to the abuse and, in particular, struggled with travelling for work and feelings of distress and being out of control. At that time, the plaintiff informed his wife and family of the abuse, attended his GP, was referred to a psychologist, Gary McMullen, and had about twelve months of treatment with another psychologist, Pippa Grange.

Around this period, the plaintiff worked part-time with the Footscray Football Club, essentially as a volunteer on match days, although at some point he seems to have been paid an honorarium.

The plaintiff ceased work with Diageo in late 2011 and did not work again until about July 2012. He then worked for a short time as national account manager with Modern Baking, which did not work out.

In late 2013, the plaintiff became key account and network manager with Lion Dairy & Drinks. That required him to travel, which caused him considerable distress. He gave evidence that he had difficulties in that employment, albeit that he achieved at least one promotion in his time with that company.

In about September 2017 the plaintiff commenced as a regional manager with Treasury Wine Estates. He gave evidence of further struggles in that employment, especially with travel. That said, he held more than one position with that company as well.

In mid-2018, the plaintiff progressed to the position of head of field sales at Treasury Wine Estates. His manager was Sarah Parkes, who gave evidence at the trial. The plaintiff had a base salary of $240,000 per annum. There was also an incentive plan.

In August 2019, the plaintiff was made redundant from his employment with Treasury Wine Estates. He was consumed with anger and distress. He has not worked since.

It was evident both in his presentation at trial and from other evidence that the plaintiff has ‘fallen in a heap’, psychologically. Since late 2019, the plaintiff has been receiving regular treatment with Anne-Marie Davis, psychologist.

There was no dispute that the plaintiff has suffered psychiatric injury as a consequence of the sexual abuse at the hands of Palframan. In a report dated 12 March 2021, Ms Davis identified the plaintiff as suffering post-traumatic stress disorder and generalised anxiety disorder.[2] The diagnosis of Dr Tagkalidis, psychiatrist, who saw the plaintiff for medico-legal purposes, was similar.[3]
[2]Exhibit Y.
[3]Exhibit S.

The plaintiff claims that the defendant is –

(a) negligent; and/or

(b) vicariously liable –

in respect of his injury, loss and damage.

The plaintiff claims damages. In broad terms, he alleges that the ‘trajectory’ of his life was altered for the worse by the abuse. Among other things, he claims that he would have been either more ‘successful’ or ‘successful’ earlier and in a more sustained way but for the abuse.

The defendant denies any vicarious liability for the abuse perpetrated by Palframan.

As to negligence, it is not in dispute that the defendant owed to the plaintiff a non-delegable duty to take reasonable care to ensure his safety at school. The defendant essentially contends that it discharged that duty and points to evidence concerning the presence of the warden of the House of Guilds, Mr Elliott, together with the system of rostering and supervision undertaken within the House of Guilds. The defendant also contends that its duty did not extend to the abuse by Palframan perpetrated in his car, unit and in the plaintiff’s home.

As to damages, as I have noted, the fact of abuse was not disputed, but the ‘trajectory’ claim was strongly contested. In that regard, it was said, among other things, that the plaintiff was likely to return to work within two or three years and at roughly the same level at which he was working prior to being retrenched from Treasury Wine Estates.

B Witnesses

PCB

The plaintiff gave evidence concerning his family, early schooling and upbringing. Some of that is referred to above and none of it appeared contentious.

The plaintiff gave evidence of attending the House of Guilds with friends when he was in year 8, with the intention of making a skateboard. He was able to walk into the House of Guilds in his school uniform carrying his bag after school. He described the layout of the House of Guilds. The woodwork room contained what was referred to as a ‘nook’ under the stairs.[4]
[4]Transcript (‘T’) 82.

The plaintiff met Palframan and thought that he was ‘just a teacher’.[5] The plaintiff attended the House of Guilds regularly. Palframan started to show interest in him. Palframan would come close and invade his personal space. The plaintiff said it was ‘a bit awkward’ from the ‘very start of meeting him’.[6]
[5]T83.
[6]T87.

At some point, Palframan started laying his hands on the plaintiff, including placing his hands up and underneath his shirt. He also started to touch and rub the plaintiff’s crotch. This was occurring through his clothing. The plaintiff said that it happened ‘every time’ he attended the House of Guilds, which would be once or twice per week. He said that Palframan would take ‘any opportunity’ to touch him, and that the abuse took place at many locations in the woodwork room.[7]
[7]T88.

The plaintiff felt this behaviour was ‘really weird’. He stated that he remains haunted by the fact that he ‘could never show the strength actually to push [Palframan] away for the things that he was doing to me’.[8]
[8]T88.

At some point during the first term in 1989, when the plaintiff was in Year 9, Palframan offered to give the plaintiff a lift home from the House of Guilds. That led to Palframan and the plaintiff attending the office of the warden, Mr Elliott, in which there was a telephone. The plaintiff gave evidence that Mr Elliott was in the office at the time. The plaintiff rang his mother and his mother allowed the lift.

Later, in the vehicle, Palframan ‘had his hands all over me’, including up the plaintiff’s shorts. Palframan said that he needed to stop at his home and then invited the plaintiff in. Palframan pinned the plaintiff at the kitchen bench and sexually assaulted him. In the course of this evidence, and, indeed, at many other points in his evidence, the plaintiff became extremely distressed, particularly when describing the incidents of abuse.

The plaintiff gave further evidence concerning the abuse. He said that from late 1988 until mid-1990 it had occurred on 50 or more occasions. Many of those occasions involved Palframan masturbating both the plaintiff and himself. On one particular occasion, Palframan ejaculated on the plaintiff’s legs, and on another occasion on the plaintiff’s clothing. The plaintiff gave evidence that he was horrified and embarrassed by these ‘shameful’ events. He said that on top of that Palframan sought to befriend his parents, whom the plaintiff plainly regarded as very good people.

On one occasion, Palframan assaulted the plaintiff in the plaintiff’s own home. The plaintiff gave evidence that on this occasion Palframan ‘appeared’ when no-one else was home.[9] The abuse also took place on five or six occasions in connection with delivering pamphlets in the Belmont area.
[9]T102.

The abuse followed a ‘process’ which would start in the House of Guilds before progressing to Palframan’s car and unit. The plaintiff described his inability to ‘break the cycle’ of abuse.[10] As a result of the abuse, which Palframan described as ‘our secret’[11], the plaintiff suffered nightmares, feelings of guilt and shame. The plaintiff did not disclose the abuse to his parents, brothers or friends. The plaintiff described himself as not ‘know[ing] what right and wrong was’.[12]
[10]T99-100.
[11]T100.
[12]T101.

At some point, the plaintiff developed a lump on his penis. He was ashamed and feared that this was maybe something that he had ‘caught’ from Palframan.[13] Palframan often told the plaintiff that the plaintiff was ‘sick’.[14]
[13]Ibid.
[14]T100.

In mid-1990, the ‘process’ was unfolding again while the plaintiff was in Palframan’s car. Palframan put his hand on the plaintiff’s leg but on that occasion the plaintiff said ‘no’. At this, there was a look of horror on Palframan’s face. The plaintiff feared that there would be repercussions or that Palframan ‘may come and get me again’.[15]
[15]T105.

After the abuse, Palframan continued to have contact with the plaintiff’s parents. The plaintiff noted that Palframan would also watch him play cricket.

Much later, when the plaintiff was in his twenties, Palframan died. The plaintiff’s father asked the plaintiff whether he had been interfered with by Palframan, as ‘he’d heard some rumours’.[16] The plaintiff denied any abuse and, at that time, felt relieved as details of the abuse would not come out.
[16]T106.

The plaintiff told his parents of the abuse much later, in mid-2007, after the breakdown which occurred when the plaintiff was in Sydney working with Diageo.

The plaintiff said that he had been ‘trying to build a façade’.[17] He said that he feared being judged. He feels terrible now about how ‘weak’ he was and how he was powerless and lost control. He told the Court that he had never really had ‘authentic friendships’ and had operated behind his ‘façade’.[18] He had been riddled with nervousness and anxiety and described himself as a ‘troubled soul’.[19]
[17]Ibid.
[18]T108.
[19]T109.

The plaintiff said that he had pushed himself to complete VCE. He also described his sporting and other achievements. Nonetheless, the events with Palframan had haunted him. He felt shame and ‘incredible sadness’. It was like he was ‘living a lie’. He thought that ‘bad things were going to keep happening to me’.[20]
[20]T112.

After completing school, the plaintiff attended Deakin University where he studied commerce, but later dropped out.[21] He said that he was ‘struggling with the demands of the university’ and feelings of isolation.[22] Later, in cross examination, he explained this by reference to his difficulties coping with the effects of the abuse.
[21]Exhibit R.
[22]T113.

The plaintiff gave evidence about his traineeship with Carlton Football Club, which he found ‘really difficult’, and his subsequent positions at the Eureka Hotel in Geelong. In that context, he re-commenced and then completed his commerce degree. He said that he enjoyed the pub work, due to the lack of pressure. He did not feel that he had to prove himself and ‘felt safe’.[23] Ultimately he left the pub, as he felt it was not a sustainable job.
[23]T114-115.

He started with Diageo in December 2004. A considerable degree of documentary evidence was tendered concerning his employments after that time with Diageo, Lion Dairy & Drinks and Treasury Wine Estates.[24]
[24]Exhibit K.

The plaintiff was married to his wife, ‘PCC’, in January 2007. That year he suffered a breakdown while in Sydney with Diageo.[25] The plaintiff confessed the abuse to his wife and parents. That was only a few months into his marriage and he was very concerned that he would ‘lose her’.[26]
[25]T117-118.
[26]T119.

The plaintiff was taken to his sketch of the relevant areas in the House of Guilds.[27] He identified the woodwork room, stairs, office, utilities room and ‘nook’. He said that Palframan was ‘always’ in the woodwork room. Palframan would push him into the ‘nook’ and abuse him.[28] Palframan touched the plaintiff ‘everywhere’ throughout the woodwork room.[29]
[27]Exhibit H.
[28]T130.
[29]T134.

The plaintiff described where Palframan parked his vehicle. The door to Mr Elliott’s office was usually open and had a line of sight to the benches in the woodwork room. There was also a narrow window that looked out to that area. There were telephones in the office and utilities area. Palframan used the telephones. Palframan had a key to the House of Guilds and would lock up.[30]
[30]T133-135.

The plaintiff said that he had not been educated about sexual consent or child abuse. He had no idea about the concept of paedophilia. He had not been instructed about any ‘pathway’ for complaints. He assumed that he could have spoken to a teacher, although no specific pathway was identified.[31]
[31]T141-142.

The plaintiff gave detailed evidence concerning difficulties later in life, especially when traveling for work. He had ‘haunting memories’ and would have his wife on the phone. He was unable to sleep. When he could sleep, he had nightmares.[32] He would take family members with him. He flew his mother to London to accompany him on a business trip. He said that he tried to ‘control’ the situation. He was fearful that work colleagues would find out that he needed support in this way.
[32]T144.

The plaintiff said that ‘the complex impacts of what this monster did’ were beyond those relating to travel.[33] Though the plaintiff attempted to keep up his façade, his behaviour at work was affected. He was jealous of others and tried to control situations.
[33]T148.

The plaintiff left Diageo in December 2011. He said it ‘got too much for me’.[34] He found it very difficult to deal with the Coles account which he described as a ‘difficult customer’. He said that he walked away and it was a ‘disaster’.[35]
[34]T153.
[35]T154.

Commencing in 2005, he was involved in an essentially honorary capacity with the Footscray Football Club. He assisted on match days and communicated with the runners and players. He had difficulty with travel, which he described as giving rise to ‘terrible moments’.[36] He would try to distract himself, particularly with eating. He ceased that role in about 2011 when the coach was ‘sacked’.
[36]T155.

In July 2012 he commenced with Modern Baking, as the national account manager for the Coles account. He described that as a ‘stupid decision’ which led ‘straight back to the same anxieties’[37]. He was only in that job for six weeks.
[37]T156.

In late 2013 he commenced as the regional key account manager for Lion Dairy & Drinks. In 2014 he was promoted and in 2016 was promoted again and became national sales manager for the ‘network’. The plaintiff gave evidence of his salary package including discretionary bonus.[38] He worked at Lion until October 2017.
[38]T157-158.

The plaintiff found his time at Lion ‘incredibly stressful’. He was involved in politicking while he was there and was ‘not proud of that’. He never went to Queensland or Western Australia while he was in that job, although he did go to Sydney and stayed with his brother.[39]
[39]T159.

The plaintiff gave evidence of his weight having been a consistent problem for him. He said that his present weight was roughly 121 kilos. He described himself as an ‘emotional eater’.[40] He described food as his biggest distraction although he also uses a guitar to distract himself. He described his day-to-day life as involving ‘a lot’ of sleep during the day and also watching sport on the couch.[41]
[40]T160.
[41]T161.

In November 2017 he moved to Treasury Wine Estates. He was approached to take up that position. He had a salary package and discretionary bonus.[42]
[42]T161-162.

He had to deal with customers and with other staff. He had eight direct reports. He found having to do that and keep up his ‘façade’ frightening and stressful. The plaintiff felt that if he had been unconstrained he could have been in a more senior role. Potentially he could have been in a managing director role.[43]
[43]163-164.

The plaintiff found it difficult to manage the pressure and stress and described his confidence levels as always having been an issue. He often worked from home, which would allow him to ‘sleep and get some energy to be able to deal with all of the challenges’.[44] He found this embarrassing. He found it ‘endless and tiresome’ trying to manage and control the situation so that his symptoms would not become too intrusive.[45]
[44]T164.
[45]T165.

In August 2019, the business was restructured and he was made redundant. Just before that there were discussions about him not travelling.[46]
[46]T162.

The plaintiff has not worked since then. He had a conversation with a recruiter in early 2020, but gave a ‘really poor account’ of himself.[47]
[47]T166.

The plaintiff said that he could not work; at the moment he is ‘so challenged by … existing’. He no longer wanted the ‘façade’. The plaintiff said that he is a ‘worker’; and expressed frustration at being unable to work.[48]
[48]T166.

The plaintiff gave evidence concerning treatment with Pippa Grange, psychologist, commencing in 2007.[49] That allowed him to ‘put one foot in front of the other’. It did not get him beyond slightly coping.[50]
[49]Exhibit U.
[50]T168.

In more recent times, he has had treatment with Anne Marie Davis, psychologist. That has been a ‘deeper journey’ involving dealing with feelings of guilt. He became very distressed in that part of giving his evidence.[51]
[51]T169.

He has not received treatment from a psychiatrist. His preference is not to take medications because he has been worried about ‘another thing that controls [his] life’.[52]
[52]T167.

His diagnoses have been post-traumatic stress disorder, general anxiety and depression. Treatment has mostly been ‘talk therapy’. There has been mention of hypnotherapy and also psychedelic medications, although they had not been recommended.[53]
[53]T170-171.

He drinks very occasionally. He takes the dog for walks for 25 to 30 minutes. He later gave evidence of playing golf every few weeks.

The plaintiff again became emotional when giving evidence concerning the impact of his symptoms on his relationship with his wife. He feels ‘endlessly guilty’. He gave evidence concerning challenges in their intimate life and his flashbacks and nightmares of the abuse.[54] In the course of much of this evidence the plaintiff was very distressed.
[54]T174-175.

That applied equally to the evidence given concerning his daughters. They are now 10 and 12. He does his best. When ruminating, the plaintiff said it was difficult to be patient. He is concerned that he sets a bad example with anger, moods and eating. He told the Court ‘I want them to have a happier life than I have’.[55]
[55]T176.

The plaintiff gave evidence concerning his parents. His mother is suffering from Parkinson’s disease. They still live in the family home in Geelong. The plaintiff gave evidence that he feels terrible visiting because of the abuse he suffered in the family house on one occasion at the hands of Palframan.

The plaintiff was asked about his relationship with his brothers. He described them as his ‘best mates’. He said that he was very proud of them, but that he was ‘endlessly jealous’ of their successful careers and happiness. The plaintiff said ‘I don’t understand why I can’t have that’, at which point he again became very distressed.[56]
[56]T178.

In cross-examination, the plaintiff was asked about his elevation to the first XI cricket team when he was in Year 9. He was mixing with older boys, socialising and at ease in the group. He also confirmed that he received house and school colours. He travelled with the school cricket team to the United Kingdom when he was 15 years of age. He confirmed that had been was ‘gregarious’, qualifying this by reference to his ‘very good façade’.[57]
[57]T185.

He was asked about his VCE score and could not remember it. His father had been a lecturer at Deakin University and his mother a primary school teacher. It emerged that both of his brothers had been to university and completed degrees.

He was asked more questions about cricket and playing for the Essendon Cricket Club and then in Geelong in his early twenties.

He was asked questions concerning most or all positions occupied by him during his working life, commencing with the traineeship at Carlton Football Club. He worked in the Bass outlet and sold tickets and memberships. He had hoped that the traineeship would be ‘the springboard into a career in sport’, but it was not to be.[58]
[58]T188.

In 1997, the plaintiff returned to Deakin University. He did about three or four subjects per year. At the same time he was working at the Eureka Hotel in Geelong. It was a renowned nightspot in the nature of pub and nightclub. There were about 25 or 30 staff working there per night. He used to work there from 8:00pm until 3:00am on a Thursday night and from 8:00pm to 5:00am on a Friday and Saturday night. He became the general manager. Originally he was a barman and met the woman who later became his wife (PCC), who also worked there casually. Later, when he was the general manager, he was responsible for staff and various other aspects of the business. He was a nominee, responsible for the licensing arrangements. He worked there until he started at Diageo.[59]
[59]T189-190.

The plaintiff was taken through many of the records relating to his positions at Diageo, Lion Dairy & Drinks and Treasury Wine Estates.[60] He essentially agreed with the contents of all of the documents that he was taken to. At Diageo, he started as a business development manager looking after a territory and was paid a base salary of $55,000. He earned various salaries in the positions he held after that time. In 2016, when he was the national network sales manager at Lion Dairy & Drinks, he earned a base salary of $180,000. In 2017, when he was headhunted to work at Treasury Wine Estates, he had a salary of $230,000. In 2018, when his title became head of field sales Australia, he earned a base salary of $240,000 plus incentives.[61]
[60]Exhibit K.
[61]T193-206

He was cross-examined concerning his involvement with the Footscray Football Club until the end of 2011. He managed that while he was also working at Diageo.

He confirmed that he had been successful and good at his job at Diageo. He described that as having been, ‘despite all the odds’.[62]
[62]T199.

He was cross-examined concerning the extent to which he had people reporting to him at Lion Dairy & Drinks. He explained various aspects of that business. He had increased responsibility and interstate travel. He had difficulty in each of the roles that he held there.

He was taken to various interstate and other trips which he took in the course of his employments from 2011. He was also asked about some of his personal holidays, including a holiday that he took with his father and brothers to attend the US Masters golf tournament in 2016.

He was asked about the impact of the pandemic upon the industries in which he used to work. Aspects of that work are now ‘audio-visual’.[63]
[63]T212.

The plaintiff confirmed that he had some transferable skills, but that strong underlying knowledge would be required in sales of medical supplies or pharmaceuticals.

He denied a suggestion that it could be assumed that he would return to work within two years.[64]
[64]See Exhibit 3.

The plaintiff was taken to aspects of his attendances on his family doctor in June 2007.[65] The effect seemed to be that his experience of suicidal ideation when in Sydney was not recorded in the notes. The plaintiff said that he had told his doctor about it, and had worked on it with Mr McMullen, psychologist, to whom he was then referred.[66]
[65]Exhibit I.
[66]T267. See also, Exhibit 11.

He was asked about investigations in connection with potential sleep apnoea and his right knee condition leading to replacement surgery performed in April 2021.

He was asked questions about his wife’s employment. In his tax return in 2019 it was recorded that his wife had earned $424,983. It was suggested that he had said to Dr Tagkalidis, psychiatrist, that he was not under any financial strain, which the plaintiff denied.[67]
[67]T225-226.

The plaintiff was asked a series of questions relating to the House of Guilds, many by reference to sketches and a series of photographs tendered later in the trial.[68]
[68]See Exhibits 6, 7, 8, 9 & 10.

The plaintiff did not know that people who were not members of Geelong College used the House of Guilds. He had not seen elderly people using the House of Guilds and had no recollection of students being there from other schools.

He was asked about Mr Elliott’s presence in the House of Guilds and in his office. It was suggested that Mr Elliott was there most of the time, and the plaintiff agreed that he was there some of the time. It was suggested that there was a teacher rostered in the woodwork room in addition to Mr Elliott, and he said that he could not recall that and did not know about the roster. The plaintiff said that there may have been a teacher on duty, but this was not always the case. In the plaintiff’s words ‘the most consistent person that was always there was Palframan.’[69] The plaintiff agreed that Mr Elliott was a very nice man. He was asked about whether Mr Elliott retired in 1990 and he said that he ‘wouldn’t know’.[70]
[69]T247.
[70]T247.

The plaintiff was taken to a particular part of a history recorded as given to Mr Entwisle, psychiatrist, concerning Palframan having befriended his parents. The plaintiff considered that to have been ‘monstrous’, and ‘one of the most shameful things that I’ve ever seen somebody do’. He said that Palframan had taken ‘mum and dad for a complete ride’.[71] His parents were, in effect, both teachers. Whenever Palframan was in the family home, the plaintiff ‘tried to get away’.[72]
[71]T263.
[72]T265.

The plaintiff was asked about his social life and hobbies. He admitted that he had friends visit. He said that he tried to entertain himself and looked to keep himself busy to run away from his worries.

The plaintiff was cross-examined by reference to notes of Mr McMullen, psychologist, in which it was recorded that Palframan was ‘not a full-time staff member’ and ‘retired man’.[73] The plaintiff could not recall that. He asked about a note which recorded ‘majority of the abuse occurred at his home’, and could not specifically recall having said that either.[74]
[73]T267. See also Exhibit 11.
[74]T267.

It will be evident that the plaintiff was a very emotional witness. There were several breaks to allow him to compose himself. Even more commonly, he sobbed while pushing himself through his evidence. There were areas in which his emphasis and even some of the content of his evidence seemed to be more a product of his distress and anger than his memory, but that is perhaps understandable. In broad terms, I accept him as an witness of truth, and, in final submissions, counsel for the defendant did not really suggest otherwise.

PCC

PCC is the plaintiff’s wife. At times, she was also emotional in her evidence. That, too, was understandable. More importantly, she presented as plainly honest, fair and admirable in many ways. She has supported her husband and sought to alleviate his distress while also raising their two daughters and holding down senior and responsible employment.

PCC met the plaintiff when she was 21 years of age. They were both working at the Eureka Hotel. She was studying commerce at Deakin University. They did not meet there; they met working behind the bar. The plaintiff was highly social, engaging and ‘gregarious’. PCC said he was ‘attractive to me’.[75]
[75]T380.

They were married in January 2007. They had a break prior to being married. He was then working with Diageo. Before that he had been working in the pub. That was not the kind of job that PCC thought he should be doing long-term because it was not suitable for raising a family. She encouraged him to complete his degree in commerce. Their daughters were born in 2009 and 2011.

She recalls the incident in the middle of 2007 when the plaintiff disclosed the abuse. Before that PCC had not been attuned to his problems with travelling or his strategies to cope. She could not recall anything of note in the first six months of their marriage.

PCC described the manner in which the plaintiff presented himself to her at that point as the same way he did to the world. PCC said that the pub had suited him and he had been reluctant to leave that work. She said it ‘completely makes sense to me’ now that she knows about the abuse.[76] At that point, PCC became distressed.
[76]T383.

PCC said that the incident in mid-2007 was a ‘very significant event’. She said that ‘the trauma was obvious’. The experience was ‘incredibly devastating’ for both of them.[77]
[77]T384-385.

PCC said that the plaintiff continues to have ‘dark times’. He was ‘very broken’ in the period after he divulged the abuse to her. He still has ‘significant episodes’. He gets overwhelmed and will break down and get quite distraught. She said that it was terrible to observe and that it impacts the whole family. She said that it can overcome him quite physically and can be quite distressing. She helps to ‘coach’ him. He also works with psychologists and others. There are moments when that is not enough. She described it as a ‘daily ongoing challenge’.[78]
[78]T385-387.

She was asked about when he had worked. She said that he had applied ‘a strategy’ to allow him to turn up. He had put on ‘armour’ each day.[79] It had been fatiguing for her to watch him do it. She confirmed that he relates well when he is in control, but not when he is not in control. She said that he can be quite aggressive.
[79]T387.

She was asked about the extent to which he helps at home. She said he tries his best but that he is fatigued and his moods are often erratic. She said that he can be reactive and angry. It can lead to unreasonable behaviour. Again, at this point in giving her evidence, PCC became distressed.

In the last 18 months to two years, the plaintiff has become less social and more withdrawn and unhappy.

PCC was asked about coping strategies when he was travelling. She noticed changes in his behaviour whenever there was a suggestion of travel on the horizon. He would try to avoid it. She went on some trips with him. Other family members were involved as well, and at one point he travelled with his mother.

PCC was asked some questions about his redundancy from Treasury Wine Estates. She gave evidence that she did not know much about that, but having regard to the state he was in when he finished that job she could not foresee him going back to work at the moment. She said it was a daily challenge and struggle for PCB.

She was asked about him undertaking golf and walking the dog. She said that while she was not ‘pushing him’ too hard she encourages him to get of the house and she can be reasonably successful at that. On the other hand, he is quite withdrawn and ‘hunkering down’.[80]
[80]T392.

She was asked about his weight which she identified as an ongoing challenge for him. She confirmed that he does not take criticism well at all. She was asked about the state of the marriage in terms of affection and intimacy and confirmed that there were ‘challenges’. She said that he can have ‘moments of … images’, although he had never discussed them with her in any detail.[81]
[81]T393.

When asked about the possibility of her husband returning to work, PCC stated that she could not ‘see [it] happening’.[82] She noted his intense anxiety which can present itself physically. Anxiety attacks can seem to happen out of nowhere, often causing the plaintiff to wake up at night.
[82]T392.

In cross-examination, PCC confirmed that she was working in a full-time position. Her husband shares the responsibilities of dropping off and picking up the children. It was suggested that the responsibility of dinner might fall upon her husband, but she said that she ‘can’t expect a lot’ from him. She said: ‘I do the bulk’.[83]
[83]T395.

As to her current job, she described it as a ‘sideways step’. She is paid $270,000 per annum excluding bonuses. She has received bonuses over the last five to seven years and that usually takes her into the realm of earning about $300,000 per annum. In one year she earned more than $400,000.[84] She was also asked about the family home and said that they were continuing to pay it off. She was asked about a history recorded by Dr Tagkalidis to the effect that the family is not under financial strain and she agreed with the suggestion.
[84]T396.

She was asked about the plaintiff attending lawyers and doctors since commencing court action in 2019, and whether he has had to relive the trauma. She confirmed that it had been difficult for him to ‘talk in detail’.[85]
[85]T399.

She was asked whether she could exclude him working. She reiterated that she could not foresee him being able to work unless there is ‘some sort of miracle’.[86]
[86]T400.

In re-examination, PCC confirmed that when her husband had been working they had received outside support from nannies and her parents. That kind of support could still be available. She confirmed that their daughters were at a private fee-paying school where it was intended that they stay.

She was asked about any suggestion that he was choosing not to work. She did not agree with it. She thought that if he could work he would ‘love to’, but that the question was whether he was capable of doing so.[87]
[87]T402.

Dr Matthew Tagkalidis

Dr Tagkalidis is a psychiatrist who saw the plaintiff on two occasions for medico-legal purposes. His qualifications were not in doubt or in dispute. His two reports were tendered in evidence.[88]
[88]Exhibit S.

Dr Tagkalidis gave evidence-in-chief that he had seen the plaintiff via electronic means, which he described as ‘not as good as seeing a person in the same room’ but good enough.[89] Dr Tagkalidis gave evidence that the abuse of which he obtained a history occurred in a period in which the plaintiff was 13 to 15 years of age, which is when major developmental changes occur. In his opinion, the abuse altered the capacity of the plaintiff to manage stress and ‘dramatically shifted’ ‘the whole of [PCB’s] educational and working career’[90].
[89]T411.
[90]T413.

Dr Tagkalidis was taken to part of his more recent report which referred to recent ‘significant decompensation’.[91] Dr Tagkalidis explained that the plaintiff had tried to contain his emotional distress concerning the abuse throughout the whole of his life, but since the commencement of the legal case and related events his ‘façade’ had broken down. In Dr Tagkalidis’ opinion, the plaintiff was going to struggle for the indefinite future. Dr Tagkalidis said that the plaintiff’s coping mechanism is ‘really broken’ and noted that it is difficult to remake such a mechanism once it is gone.[92] He noted, also, that one of the results of such a ‘decompensation’ was that one would ‘become much more consistently and easily overwhelmed by any kind of stress’.[93]
[91]T414.
[92]T415.
[93]T417.

Dr Tagkalidis gave evidence concerning the plaintiff’s very powerful sense of shame about the abuse. The ‘façade’ had defended him from those feelings of shame. But without the façade Dr Tagkalidis did not believe that it could be rebuilt in a functional way in the foreseeable future. Dr Tagkalidis was referred to the plaintiff’s current symptoms and described him as ‘struggling gigantically’.[94]
[94]T417.

Dr Tagkalidis was asked about his prognosis concerning the plaintiff’s return to work. He was of the opinion that it was likely that the plaintiff would remain unable to work for the foreseeable future. He considered, and he said in his report, that it was likely that the plaintiff would re-enter far less stressful and lower remunerated work ‘at some point in the future’. He considered it to be ‘highly unlikely’ that the plaintiff would re-enter highly stressful work. He did not consider that the plaintiff could cope in that work on account of the difficulty in rebuilding his ‘dysfunctional means of coping’, such as travelling with family members, which the plaintiff had used to manage his anxiety.[95]
[95]T418-419.

Dr Tagkalidis said that it was hard to predict when the plaintiff could return to less stressful work. He could not imagine it within the next two to three years. He thought that the chances slowly increase from four to five out to 10 years. Where in that period is a guess. His ‘best guess’ was that ‘in 10 years’ time … he would be able to do some form of lower level work’.[96]
[96]T420.

The natural history of a condition such as the plaintiff’s is that it will attenuate but he will always have the difficulties ‘burned into him’. Any significant external stress will potentially set him back. He is vulnerable to setbacks.[97]
[97]T421.

Dr Tagkalidis was cross-examined in a searching manner. At times, the tone and the terms of the cross-examination were robust.

The cross-examination commenced with attention given to the fact that parts of the two reports were identical whilst other elements of the reports appeared to differ from one another. Dr Tagkalidis explained that on the second occasion he took the plaintiff through the history that had been obtained on the first occasion and annotated the changes when advised of them during the second consultation. In the course of that evidence, Dr Tagkalidis held up his first report which showed his handwritten annotations.

The cross-examiner referred Dr Tagkalidis to aspects of the plaintiff’s evidence concerning the abuse in the woodwork room as opposed to the abuse that occurred in the car, in the unit and on one occasion at the plaintiff’s family home. The cross-examiner compared aspects of that evidence to the history in Dr Tagkalidis’ reports, which was in broader terms. The cross-examiner sought to compare the abuse in the woodwork area to the abuse at the family home and Dr Tagkalidis gave evidence that he would consider them to be a ‘continuum.’ In so doing, I understood him to acknowledge that the latter abuse was of a ‘serious degree’[98] but that he had understood the abuse to be as a whole.
[98]T430.

It was suggested to him that there was an enormous difference between the forms of abuse, and Dr Tagkalidis stated that the abuse ‘can’t easily be separated out’.[99] He again gave evidence that he understood them to be a ‘continuum’. In the course of this lengthy segment of cross-examination, Dr Tagkalidis was referred to various parts of the plaintiff’s evidence.[100]
[99]T334.
[100]T429-434.

Dr Tagkalidis was asked whether he had seen the plaintiff’s school reports. He did not think he had seen them. There was an element of criticism of Dr Tagkalidis in the tone of the cross-examination. Dr Tagkalidis considered there to be ‘valid criticism’ in the suggestion that he had not obtained all relevant details, but he observed that an analysis of school reports does not always capture the ‘totality of the effects on a person’[101].
[101]T438.

Again, parts of the evidence including the evidence of the plaintiff’s wife were put to Dr Tagkalidis. Dr Tagkalidis was also asked about what he had understood concerning the plaintiff’s work history and the fact that his report did not seem to record or acknowledge every position which the plaintiff had held with the various organisations that he had worked with. Dr Tagkalidis, in general terms, indicated that his understanding of the plaintiff’s work history was a broader one. Dr Tagkalidis defended the comments made in his report concerning the effect upon the plaintiff’s work performance as a result of the abuse.

The cross-examiner challenged Dr Tagkalidis in some detail concerning the reference in his report to the ‘detrimental shift’ in employment achievement.[102] Dr Tagkalidis explained that by reference to other parts of his report and his opinions concerning the innate abilities of the plaintiff; whom he regarded as both intelligent and capable of achievement. He considered it to be highly likely that the plaintiff would have been more successful and consistent in his performance but for the abuse.[103] Dr Tagkalidis gave this evidence in a very patient tone.
[102]T447.
[103]T446-448.

Dr Tagkalidis was asked about the nature of the plaintiff’s treatment and the extent to which he was obtaining psychological strategies to cope. Dr Tagkalidis did not consider that the plaintiff will ever cope in the same way as he would have. He considered the plaintiff’s façade to have been dysfunctional and to have broken down. He considered the objective of treatment to be to support and bolster the plaintiff’s coping mechanisms, but that he has been damaged internally and coping strategies can never ‘cure’ this ‘level of damage’.[104] He considered that it was extremely unlikely that the plaintiff will substantially improve.
[104]T451.

Dr Tagkalidis was asked about the end of the litigation process and whether that would sponsor some form of recovery. He acknowledged that it should help marginally in the short term.

Dr Tagkalidis was asked whether he regularly provides reports for the plaintiff’s solicitors in other matters and he acknowledged that he did. He was asked whether he is in other circumstances asked to differentiate between different stressors and reference was made to the part of his second report that referred to the contribution made by the plaintiff’s knee pain. He was asked to describe a percentage in relation to the contribution made by the abuse in the woodwork centre as opposed to the abuse in the car and home. Dr Tagkalidis acknowledged that the abuse that occurred in the school is ‘significantly lesser’ in impact, but his understanding was that the latter would not have occurred if it was not for the earlier abuse and he repeated his earlier evidence that it was, in his mind, a ‘continuum’.[105]
[105]T457.

In re-examination, Dr Tagkalidis confirmed his evidence concerning the ‘continuum’. He was taken to various further parts of the plaintiff’s evidence. He gave evidence that the whole experience is the abuse. When the trust with Palframan was ruptured and the overt abuse started occurring, the experiences were ‘an entity in themselves’ and that it was ‘very artificial to separate off where they occurred’.[106] He considered it to make ‘absolutely no sense at all’ at a clinical level.[107]
[106]T460.
[107]T461.

He was asked about the comparison with the plaintiff’s brothers and he considered that to be ‘always a good comparison’. He considered it to be a ‘basic but relevant comparator’.[108]
[108]T462-463.

Dr Tagkalidis was asked concerning the breakdown of the plaintiff’s methods of coping. He gave evidence concerning the dysfunctional earlier methods of coping and how they had broken down. He gave evidence that at the ages of 13 to 15 there were ‘multiple strands of his sense of self’[109] and the rupture in his development together with a very powerful sense of shame had led the plaintiff to develop an external façade that had now fallen away. Given that loss, the plaintiff was now relying upon a ‘patch up’ of coping techniques to allow him to manage the negative emotional effects of the abuse. Dr Tagkalidis did not consider that the plaintiff could ‘fundamental[ly] change the person that he is’ or ‘develop a healthier range of coping mechanisms’.[110] He considered that the plaintiff was much more vulnerable to stress and that his capacity is ‘several rungs lower than would have been the case’.[111]
[109]T463.
[110]T464.
[111]T465.

He was asked about the plaintiff breaking down again. Dr Tagkalidis gave evidence that clinically the position is not a cumulative one, but that if a breakdown does occur it was less likely that the plaintiff would regain function over time and be more likely to fall apart into anxiety, anger and other symptoms after each breakdown.

Jason Baldwin-Cole

When he was at school, Mr Baldwin-Cole was known as Jason Bamford. He commenced at Geelong College in 1984 as an 11 or 12 year old in Year 7 and completed Year 12 in 1989.[112]
[112]T468.

Mr Baldwin-Cole gave evidence-in-chief that he went into the senior school in Year 9. At that time, he became familiar with the House of Guilds, which he attended for woodwork classes in Year 10. He identified the main supervisors as Mr Egan and Mr Elliott. Palframan was also there. There were some other teachers there sometimes. He attended the House of Guilds for certain classes, during lunchtime and sometimes after school.

He believed that Palframan was a teachers’ aide or assistant. Mr Baldwin-Cole said ‘he was the same as the teachers, basically’.[113] Palframan used to help with projects and was knowledgeable about skills. Mr Baldwin-Cole completed various woodworking projects in the House of Guilds.
[113]T470.

Mr Egan and Mr Elliott were often in the office at the House of Guilds on the right as you walked in. However, they were not always there. There were times where Mr Baldwin-Cole or he and other students were left alone with Palframan when there were no other staff there. Mr Baldwin-Cole described the woodworking room without being taken to any sketches or photographs. To me, Mr Baldwin-Cole’s memory of the room was strikingly good.

He was in Year 9 in 1986. Palframan was often at the House of Guilds when he was in class or working on projects. Mr Baldwin-Cole described Palframan as ‘creeping round’.[114] He described Palframan as breathing down the back of his neck and leaning over him while he was attending to projects. Palframan was close enough for Mr Baldwin-Cole to feel uncomfortable. Palframan would put his hand on his shoulder. Palframan also had a ruse whereby he would pretend to shake hands and then move his hand and touch Mr Baldwin-Cole on the penis. The touching occurred outside Mr Baldwin-Cole’s clothing. Mr Baldwin-Cole also described Palframan cupping underneath the cheeks of his buttocks. He would also slide his arm around his shoulder and put his hand in onto Mr Baldwin-Cole’s chest.[115] ‘Usually’ there was someone else there.[116] Mr Baldwin-Cole described the penis ruse having occurred on maybe half a dozen occasions and it having been ‘creepy’[117].
[114]T474.
[115]T474-475.
[116]T475.
[117]Ibid.

Mr Baldwin-Cole tried to avoid the contact and to shrug Palframan off. Palframan would touch him on the hip. It would happen in front of other students. He saw the handshake ruse occur with other students as well. Palframan would invade Mr Baldwin-Cole’s personal space and Mr Baldwin-Cole would be on guard. Mr Baldwin-Cole remembered Palframan going off with one or more students after school in his car which he thought was a bit odd. On the other hand, Mr Baldwin-Cole observed that Palframan appeared to have ‘the trust of the school’.[118] Mr Baldwin-Cole said that Palframan ‘was familiar around the place’ and was ‘making himself completely at home’.[119]
[118]T477.
[119]Ibid.

Mr Baldwin-Cole was asked about Mr Elliott who he described as funny, gentle, kind and sweet. He also described Mr Egan as very proper and very knowledgeable.

Mr Baldwin-Cole was asked about telling any teachers about Palframan and he said that he raised it with Mr Egan and with Mr Elliott. He said that he reported it later in 1987 when ‘it got more intense’.[120] The touching became more deliberate and it was obviously not accidental. When giving this evidence, Mr Baldwin-Cole became visibly emotional and appeared to be in a mode of almost re-experiencing the events. Mr Baldwin-Cole said that he was scared and angry about Palframan as it was getting more deliberate and he was feeling pressured and trapped.
[120]T478.

He first spoke with Mr Egan. The conversation took place near the bandsaw inside the front door near the stairs of the House of Guilds. Mr Baldwin-Cole described what he said to Mr Egan in general terms and, when asked to be more specific, described what he had said as ‘he’s grabbing us on the dick and being a sleaze’.[121] He was making the complaint on behalf of him and others, to which Mr Egan reportedly replied ‘Oh, why would that bother you?’[122] Mr Baldwin-Cole said that he was ‘a bit bewildered by his response because it was a fairly big thing’ that he was raising[123].
[121]T480.
[122]Ibid.
[123]T481.

After that, Palframan again tried to touch Mr Baldwin-Cole ‘a few times’.[124] Within a month or so, he raised the matter with Mr Elliott. He said that Palframan has been ‘groping us’. When pressed about exactly what he had said, Mr Baldwin-Cole said he had said something like ‘you have to watch out for Bert because he will grab you on the dick’.[125] He said that he was clear about it. That conversation occurred in the quadrangle at the House of Guilds. He said that Mr Elliott gently laughed it off and said ‘he’s harmless, don’t worry about him’.[126] Mr Baldwin-Cole could not remember the particular words that he said to Mr Elliott, but he considered himself to have made it clear.
[124]Ibid.
[125]T482.
[126]Ibid.

The final time was again to Mr Elliott, in the woodwork room at the table on the left as you go in. Palframan was at the other end of the room and out of earshot. That conversation was similar. Mr Baldwin-Cole said that he told Mr Elliott that ‘we were being groped and that Bert was being inappropriate and touching us’.[127]
[127]T483.

Nothing changed after that, and a few months later Mr Baldwin-Cole wound back his attendances at the House of Guilds. He felt a bit stupid for having raised it. He said that he felt like he was on his own.

When he was in Year 11 he went to the House of Guilds occasionally. On one occasion, when he was in Year 11, Palframan tried to touch him again, but Mr Baldwin-Cole was vocal and shoved him away with both hands. Mr Palframan told Mr Baldwin-Cole’s father that Mr Baldwin-Cole had been smoking in the toilets. Mr Baldwin-Cole thought that Palframan did this to protect himself.

In cross-examination, Mr Baldwin-Cole was asked about other teachers at the school, including Mr Lancaster and Mr McBride who was the head of house.

Mr Baldwin-Cole was asked about getting to know teachers. He said that he did not really get to know them when he was in Year 9. When he was in Year 10 he knew a couple of them. He did not approach any of them about what he had said to Mr Egan and Mr Elliott.

He was cross-examined about the actual or exact words used in his complaint to Mr Egan. Mr Baldwin-Cole said that he could not be precise about the actual words. He said that he was ‘very clear in getting the message across’,[128] but could not recall the exact words used.
[128]T489.

It was suggested to Mr Baldwin-Cole that he had first told the school when he claimed against it in November 2020. Mr Baldwin-Cole said that he had told Mr Egan and Mr Elliott and then he had more recently made his claim.

As to the conversations with Mr Elliott, Mr Baldwin-Cole remembered the gist but again did not remember the exact words.[129] He remembers bolstering himself to say something. He said that he wanted to say something confronting that would ordinarily get a student into trouble. He can clearly remember getting his message across. He said he remembers his intention.
[129]T490.

He was asked whether he knew that Mr Elliott had died in 2018. Mr Baldwin-Cole said that he did not know when Mr Elliott had died. It emerged that Mr Baldwin-Cole had learned of Mr Elliott’s death after making his own claim.

It was suggested that he was mistaken about having spoken to Mr Egan and Mr Elliott. Mr Baldwin-Cole replied ‘you’re incorrect’ and ‘I absolutely had those conversations. … There is absolutely no doubt in my mind’.[130]
[130]T491.

It was suggested to Mr Baldwin-Cole that he would have gone to others at the school. He acknowledged that he did not. He said that he did not feel comfortable enough with other teachers. Of Mr Egan and Mr Elliott, he said ‘they were right there’. He said that it was ‘in front of them what was going on’ and that was why he went to them. He basically got ‘slapped down’ and consequently removed himself from the House of Guilds.[131]
[131]T492.

It was suggested to Mr Baldwin-Cole that there were other teachers supervising, and he said that he did not remember them there as much. It was suggested to him that there was always a staff member supervising and he said ‘certainly not. That is incorrect.’[132]
[132]T493.

Mr Baldwin-Cole clarified that Mr Egan and Mr Elliott were often present in the woodwork room or the office, but not necessarily when Palframan was touching him. On the other hand, he said that they ‘could not have not seen it’.[133]
[133]T494.

In re-examination, Mr Baldwin-Cole said that sometimes only Palframan was present in the woodwork room in the afternoons. Sometimes a teacher was coming in and out. In those times, Palframan was there as the supervisor.

Mr Baldwin-Cole was asked why he did not report it to other teachers. Mr Baldwin-Cole said that he felt powerless and he felt that the people he had reported to were in the best position to do something about it. He said that they had dismissed him like it was nothing. He did not raise it with anybody else because he did not want to get embarrassed or kicked out of the school. Ultimately, he said ‘I was a kid’.[134]
[134]T495.

He was asked about attending a counsellor retained by the school. It emerged that this had occurred on three or four occasions, seemingly a few months before Mr Baldwin-Cole commenced proceedings. He told that counsellor, whose name was Ryan, that he had complained to the teachers.

Anne-Marie Davis

Ms Davis is a registered psychologist and has treated the plaintiff mostly fortnightly since 15 November 2019. She has seen him on 28 occasions, most recently on 5 August 2021. Her report was tendered in evidence.[135]
[135]Exhibit Y.

In examination-in-chief, Ms Davis confirmed that her treatment had endeavoured to assist the plaintiff to live as effectively as he can. She said that the sexual abuse had had a profound impact upon him at a critical development stage. Her diagnosis is post-traumatic stress disorder and generalised anxiety disorder. She said that the plaintiff has continued to be triggered throughout his adult life. He was constantly questioning his self-worth.

Ms Davis said that the plaintiff’s symptoms had not especially varied. In her view, he has been ‘severe’ since she first saw him. She thought that his diagnosis was likely one for a lifetime. That was supported by the literature in the field.

She was asked about the extent to which the plaintiff had struggled to realise his potential. She believes that he would have achieved a lot more in life had the abuse not occurred. That was on the basis of what she had heard about him. She confirmed that he had presented as intelligent and articulate in therapy.

She was asked about the impact of the abuse upon the plaintiff’s employment. She said that he had ‘struggled enormously internally’. In her opinion, the plaintiff would have ‘enormous difficulty’ returning to work. She said that he faced a lifetime of therapy and ‘there’s no pill you can take for it’.[136] She was not optimistic that he would find work at any time soon.
[136]T623.

Ms Davis confirmed that treatment was ongoing and would need to continue as the plaintiff continues to be triggered. She said that he was self-judging and has distorted thinking. She said that he had a deep sense of shame and guilt, which is not uncommon in abuse victims.

She said that he has had setbacks. He had reacted to cases in the media. Ms Davis gave evidence that he was very vulnerable to future breakdown.

In cross-examination, Ms Davis confirmed that early sessions with the plaintiff had touched upon his redundancy from Treasury Wine Estates. That had a significant impact upon him. She was asked whether he was angry concerning that event, and she said that she did not see him angry but saw him as devastated and sad. She said that his ‘lifetime of struggle in the workplace’ had culminated in redundancy.[137]
[137]T627.

She acknowledged that the setbacks had included the legal case. It was suggested to her that his condition would ‘settle’ after the case was over. She said ‘I don’t know that it will actually’ as he is ‘triggered by other things too’.[138] She acknowledged that it ‘might’.
[138]T628.

The plaintiff’s difficulties with travel were raised. Ms Davis said that there were numerous factors and travel was one of the ‘significant ones’.[139]
[139]Ibid.

She was asked about his positions and promotions in his employments, particularly with Diageo and Treasury Wine Estates. It was suggested that it amounted to a good career progression in the period 2005 to 2019. She acknowledged that it looked like that ‘externally’. She said that he ‘really struggled to take up those challenges’ and that ‘no one could see what was happening on the inside’.[140] She said that the ‘crippling effect’ was internal and that pursuing those positions had come at ‘enormous personal cost’.[141] She said that the plaintiff had been trying to reach his potential, but inside he was hollow and struggling. She said that to the external eye he had appeared to be progressing professionally, but inside he had been ‘crumbling and … getting worse’.[142] She acknowledged that this was based upon what he had said to her in treatment.
[140]T630.
[141]Ibid.
[142]Ibid.

She confirmed that she did not have vocational qualifications. She also confirmed that she had been suggesting strategies and planning for the plaintiff’s future. She was asked whether there were psychological benefits in getting back to work and she agreed that was so ‘in certain cases’.[143] She confirmed that she would encourage him to get back to work if she thought it were helpful. She could not exclude that he would return to work, but ‘would be very concerned for him if he did’.[144] She was unable to say when he might return to work.
[143]T632.
[144]Ibid.

In re-examination, Ms Davis confirmed that she would be concerned if the plaintiff returned to work. She would be concerned about the severity of his symptoms and his difficulty in getting past them. She said that he had built a façade to help him cope, but burnt himself out and she doubted that he would be able to do that again. If he was triggered it could be devastating. In her view, his post-traumatic stress disorder and the effect of trauma is ‘very entrenched’.[145] She said that she was concerned for his welfare.
[145]T633.

She did not believe that he was anywhere close to holding down work. She thought that damage in that endeavour would ‘take him back immensely’.[146]
[146]T634.

She said that he struggled to be alone, he struggled with travel and terrible thoughts would ‘come at him’. She said that he had adopted a combative approach in the workplace in order to ‘gain control’.[147] That had involved cutting people down and jealousy. She said that the plaintiff had been jealous of people who had not suffered as he had. She was concerned that symptoms and difficulties of that kind would re-emerge if he was to return to work. She said that he ‘still has a long way to go’.[148]
[147]Ibid.
[148]T635.

Terry Egan

Mr Egan is a retired school teacher called by the defendant to give evidence. He was to turn 85 years of age five days after the day on which he gave evidence. He retired from teaching in December 1997. He was brought up on a farm outside Portland. He commenced teaching in 1957. It is apparent that he taught in the State system for a period. He taught art and creative studies. He was invited to teach at Geelong College and commenced there in 1972. He stayed there until he retired.

In evidence-in-chief, he described the new House of Guilds opened in 1980. After about two years, it became open to membership by members of the community. It was open to students of the College and students from other schools. In terms of equipment, it had ‘everything’.[149] It was open from 9:00am until 6:30pm in the summer and 9:00am until 6:00pm in the winter. It was also open on Saturday and Sunday.
[149]T642.

Mr Elliott was the warden. Mr Egan taught Mr Taylor in Year 12, and he later became a fellow teacher at the school and also warden of the House of Guilds.

Mr Egan confirmed that there was a roster for teachers to attend the House of Guilds. That occurred every day after school until closing time, and on weekends. Mr Egan was part of the roster. The rostered teacher would open and shut the House of Guilds, making sure that the lights were on and the windows were open. There was supervising of basic operations in terms of use of the machinery, sharpening tools and the like.

The number of people who attended the House of Guilds out of hours was ‘totally unpredictable’. Sometimes Mr Egan could be there on his own for an hour or two, but on a good day five or six members of the public would be present.[150]
[150]T644.

Mr Egan recalled Palframan, though he could not remember when he became a member of the House of Guilds, noting only that he ‘turned up one day’.[151] Although he might recognise Palframan if he saw a picture, it is only ‘a vague memory after all this time’. When asked how often Palframan attended, he said ‘at the most three to four times per week, perhaps’. [152] Mr Egan remembered other community members.
[151]Ibid.
[152]T644-645.

Mr Egan did not have any concern about Palframan with the students: ‘not at all’. He did not remember what projects Palframan was involved with. Palframan was ‘a very quiet fellow’.[153]
[153]T645.

Mr Egan was asked about a student named Jason Bamford. Mr Egan said that the surname ‘rings a bell’, although he could not ‘place the student’.[154]
[154]Ibid.

Mr Egan was asked whether any boy had made a complaint to him concerning being the subject of sexual assault or being touched on the ‘dick’ and he replied ‘no’.[155]
[155]Ibid.

In response to the suggestion that he had dismissed such a complaint, he responded ‘frankly, I’m hearing this for the first time’. If such a complaint had been made, he would have taken it ‘very seriously.’[156] He said that he would have taken it to the next senior person and then ‘straight up the line’. He said that if such a complaint was made, he would not have let Palframan ‘into the building’.[157]
[156]T645.
[157]T646.

Mr Egan was cross-examined at some length. He was asked about having attended staff meetings and he confirmed that he had attended ‘plenty’.[158] He was also asked about positions that he had held and his office at the House of Guilds. He had an office in an open area on the mezzanine level.
[158]T647.

Mr Egan confirmed that the primary responsibility of the school and its teachers is the care of students. He said that he followed the doctrine ‘in loco parentis’. He said ‘once a child enters the school, through the school fence or whatever, we are responsible’.[159] He confirmed that it was the responsibility of the supervising teachers at the House of Guilds to ensure that students did not come to harm. He said it was ‘taken for granted rather than spelt out’.[160]
[159]T649.
[160]Ibid.

In respect of a Year 7 or 8 student who had been looking for direction in their work at the House of Guilds, he confirmed that such a student could speak to him, or Mr Elliott and, when asked in respect of Palframan, said ‘probably’. Similarly, in respect of supervision, he was asked whether such a student could ask him or Mr Elliott and he said ‘yes’, and in respect of Palframan he said ‘probably’, although he could not remember that happening, ‘in particular’.[161]
[161]T652.

He was asked about the process of Palframan assisting a student and he confirmed that there was no formal process and it was just ‘part of the flow’. He did not know whether there was a vetting process for community members, but presumed that it was simply name and address and payment of a fee. He did not know that Palframan was an honorary member.[162]
[162]Ibid.

Mr Egan gave some evidence concerning his duties in 1980 and those of Mr Elliott. He was asked about teachers who might be rostered at the House of Guilds in the period 1988 to 1990 and he referred to himself, Mr Elliott, Mr Wells, Mr Smith, Mr Lancaster, Mr Andrews and Mr Taylor. He confirmed that they were all meant to be supervising from time to time. When rostered they would spend time in various parts of the House of Guilds. They would possibly duck out to their own rooms at times and he confirmed that he did that himself. He had no specific memory of those occasions or for how long, although he said that such a thing would never happen for 20 minutes.

Mr Egan was asked whether Palframan may have helped students and he confirmed that he might have. He also confirmed that Palframan was potentially there in the House of Guilds on his own at times. He was asked about the ‘nook’ and confirmed that it may not have been able to be seen from the warden’s office.

Mr Egan was asked further questions concerning Palframan. He said that he did not remember Palframan coming up to him, which he explained by saying ‘he wasn’t a conversationalist’. To Mr Egan, Palframan was just another member of the public. Of himself, Mr Egan said ‘I’m the sort of person who accepts people as they are’.[163]
[163]T659.

Mr Egan was asked about what was said about Palframan in the Pegasus newsletter in 1987.[164] He said that it was beyond his memory, but disagreed with the report that Palframan had been ‘of great assistance’. He described him as a ‘general dog’s body’ and could not remember him working on his own projects. He said that he ‘wouldn’t have recommended him to anyone’, as Palframan was not a tradesman or skilled. He was just ‘in the room involved with this and that’.[165]
[164]See Exhibit 1.
[165]T660.

Mr Egan was asked about whether Palframan had access to the phone in the office and said that had not occurred while he was there. He said ‘I run my own ship’.[166] He said that some members were a bit free and easy with the tools. That could apply to Palframan. In respect of himself, he said that he ran the place when he was there. In respect of Palframan, he said that he did not have ‘leadership quality’ though he ‘may have’ given advice or instructions to students.[167]
[166]T660.
[167]T661.

Mr Egan was asked whether Palframan had keys to the House of Guilds and he said that he would be ‘surprised’. It was suggested to him that evidence had been given of Palframan locking up and the evidence surprised him.[168]
[168]T662.

Mr Egan was asked about students being driven home. He said that once a student was out of the door he did not think any more of it. He said that he was usually involved in writing notes or packing up. He was asked about parking on school grounds and he said that he would not have allowed it.

He was asked whether he was surprised that Palframan had attended a music camp and he replied ‘yes’. He referred to his ‘vague, vague memory’. He said that he was very surprised to learn this, but that it was possible.[169]
[169]T664-665.

He was asked whether he had known that Palframan had handed out business cards to students. He described the practice as ‘extremely odd’ and said that he had not known about it. He asked, rhetorically: ‘why would you want to do it?’[170]
[170]T665.

Mr Egan was asked about the attitude and approach to students being touched. Mr Egan said that he was ‘a very naïve boy’ who had grown up on a farm and had been totally unaware of ‘male to male or human sexual, call it disorder’ until he was about 30 years of age. He then referred to a previous school that he had been at where a member of the physical education staff had interfered with boys and later served jail time. That was the first time he had become aware that staff could be involved with students in such a way. He ‘knew it could be possible’.[171]
[171]T666.

Mr Egan was asked whether there was any discussion of such an issue at Geelong College and he said ‘no’. He described Geelong College as having had ‘a very good run’. He did not find himself involved in anything of that kind in his entire career. He said ‘this side of life didn’t appear as part of me’.[172]
[172]T666-667.

Mr Egan was asked about Geelong College having admitted to many, many sexual assaults having occurred and he said that he had been totally unaware of it. He said that it was a surprise to him. He said that very good teachers were involved. He described his time at Geelong College as a ‘grand time’ and added that ‘this aspect of life wasn’t part of me’.[173]
[173]T667.

Mr Egan was asked whether the staff had been told to watch out for abuse of students and he did not remember a staff meeting at which anyone had said anything of that kind. He knew that in boarding schools there had been the ‘occasional interruption in the good way of life’, which he seemed to suggest ‘goes back 2000 years’.[174]
[174]Ibid.

Mr Egan was asked about Mr McPherson, Mr Longley and Mr Cameron. He said that they were at the prep school. It seemed that he only heard about that later. He did hear at some later time about David Whitford.

Mr Egan was again asked about whether there was any guidance of staff in respect of dealing with such complaints and he said that there was not any that he could recall. He said that ‘it was a different world then in this regard from today’.[175]
[175]T669.

It was suggested to Mr Egan that there had been 26 staff who had been accused of sexual interference with students at Geelong College. Mr Egan said that he had never heard such statistics at all. The suggestion in his evidence was that he thought that such a thing could occur in the public school system but he was surprised to hear that it could happen at Geelong College. It had never come up in his teacher training.

Mr Egan confirmed that there had been no policies or plans in place at the time in respect to such things at Geelong College. He acknowledged that it was possible that it could occur but it was hard for him to believe that it had been going on ‘under your eyes’. He said: ‘I look for the best in people, not the worst’.[176]
[176]T670.

As to his memory, Mr Egan said that he remembers the good times and the good things which occurred during his tenure at Geelong College. He confirmed that most of the day-to-day stuff was ‘just gone’.[177]
[177]Ibid.

Mr Egan was asked whether he could remember the plaintiff. He said ‘no, not at all’.[178] He could remember that there were some boys at the school with the plaintiff’s last name. He then gave evidence concerning his involvement as a house master.
[178]T670.

Mr Egan was asked concerning Peter McCann. He remembered Mr McCann and that he had a ‘brain injury’ owing to a difficult birth. He thought that Mr McCann might have attended the House of Guilds. He did not remember any teaching responsibilities that he had in respect of Mr McCann.[179]
[179]T672.

Mr Egan was taken in some detail to documents concerning the tuition of Mr McCann.[180] The documents referred in name to Mr Egan, but also to Palframan. The documents identified Palframan as having been involved in the tuition of Mr McCann in woodwork. It was a lengthy passage of cross-examination. The substance of Mr Egan’s response was that he was ‘absolutely surprised’ to see Palframan’s name referred to in the documents and could not remember the events himself.[181] He had been adamant that Palframan would not be involved in such things, but the documents to which he was taken suggested otherwise. Ultimately this was not something Mr Egan was able to explain satisfactorily.
[180]Exhibit F.
[181]T674.

From that point onwards, Mr Egan seemed shaken in his evidence. He was plainly trying to reconstruct events in order to take account of the documents that he had been shown. I should say that Mr Egan was a polite and well-mannered gentleman dressed in a collar and tie. He had an old-fashioned manner, totally in keeping with his age and professional life. With that said, it became apparent that his memory of events, now more than 30 years ago, was a rather broad one. I do not regard that as surprising. The cross-examination by reference to the documents showed the quite understandable effects of time upon his memory. Towards the conclusion of the sequence of cross-examination relating to the documents from 1990, Mr Egan exclaimed ‘this has amazed me’.[182]
[182]T686.

Mr Egan was asked when he was first asked to recall these events of more than 30 years ago and he said that that had only occurred within the last few days.[183] That included in respect of the conversation suggested to have occurred with Mr Baldwin-Cole. Senior counsel put the substance of the suggested conversation with Mr Baldwin-Cole again and Mr Egan said that he could not recall any student having been interfered with, but that if they had a hand put on them he would presume ‘that was on [the] shoulder or somewhere’.[184] It was suggested to Mr Egan that Mr Bamford had been specific and described the touching with reference to a word such as ‘dick’ or ‘cock’. Mr Egan repeated that he had no recollection of any such conversation but that he was sure that he would have acted on it immediately.[185] Evidence to that effect was given by Mr Egan at various points during the cross-examination.
[183]T688.
[184]Ibid.
[185]Ibid.

He was asked whether it was possible to remember a single conversation of 30 years ago and he conceded that it was ‘virtually impossible’. He also confirmed that the fact that he did not have any memory of it did not mean that it did not occur.[186]
[186]T690.

On the other hand, Mr Egan said that if the words had been expressed in the manner described it would have shocked him if he ‘had taken it on board immediately I might have been distracted or doing something, I don’t know’. If the words had been spoken clearly, he ‘would have acted immediately’. He said ‘I would have processed it if I was aware it was said to me’.[187]
[187]T690.

Mr Egan said ‘I hadn’t been thinking about these sort of things for a half a century’.[188] He noted having ‘heard of other staff members and so on and so on’. It later emerged that this was a reference back to the interference with students by the physical education teacher.[189]
[188]T691.
[189]Ibid.

Mr Egan again confirmed that Geelong College had not given any guidance about how to deal with such incidents.[190]
[190]Ibid.

Economic Loss Damages

The essential issues in the assessment of economic loss damages were –

(a) the plaintiff’s contention that the abuse had an effect upon the overall ‘trajectory’ of his career progression such that he has suffered a general loss of earnings or earning capacity;

(b) the point in the future at which the plaintiff might return to work (if at all) and what he might earn when so returning;

(c) the plaintiff’s likely retirement age.

In any case of the present kind, the determination of such issues is influenced by imprecise elements of impression and the need to contemplate hypotheticals and unknowable future events. Expert and lay opinions concerning such impressionistic matters cannot determine the answer. In my view, these considerations are particularly evident and applicable to the present case.

To some extent I have already stated my impressions concerning some of the impacts of the abuse upon the plaintiff’s life.

As to the specific issue of overall ‘trajectory’, it will be evident that I have accepted that the abuse affected the plaintiff from his adolescence, but I do not regard that as having significantly affected his results at school. Nor do I place great significance – in terms of economic loss – upon its effects until some point after the plaintiff met PCC, which seems to have been in about 1997 or 1998, when he was 22 or 23 years of age.

The plaintiff did not give evidence of being academically driven or carrying a specific early career objective or ‘dream’ that he had either commenced or determined upon and which he was deprived of by reason of the abuse.[290]
[290]I do not here overlook the evidence of the plaintiff at T78 concerning his cricketing dreams. The point is that such evidence, as I understood it, was not put forward as a firm career aspiration, and no such evidence was given concerning any other early academic, career or professional aspiration.

Further, the success and career ‘trajectory’ of the plaintiff’s brothers, with whom he might in a general sense be thought to share overall personality or character traits, may well look considerably more ‘linear’ in hindsight than, I suspect, they appeared when they were unfolding. Both might be thought to exhibit the kind of freedom, latitude and underlying confidence evident in members of a privately educated and supportive family where a degree of exploration in years of or surrounding tertiary education is neither uncommon nor discouraged.

I tend to think that such features would also have been evident in the plaintiff absent the abuse. For those reasons, I cannot accept that it was more likely than not that he would have simply ploughed through his commerce degree and, at the age of about 20, set upon the career in sales and ultimately management that he settled upon much later in his actual life.

An assumption of that kind – which is one of the assumptions made by Mr Thompson in his calculations – tends to overlook the influence of intervening maturity and perspective as the plaintiff approached his mid to late twenties, his ultimately successful completion of his commerce degree at Deakin in 2000 and the very important influence of PCC upon the timing of his determination to take a more ‘professional’ career path, initially with Diageo in late 2004.

In that sense, it is one thing to have ability, or aptitude, but there are many examples of a mismatch between ability and career progress. The missing feature is often personal circumstances, and in this instance the personal circumstances that I have referred to, and particularly the likely influence of PCC, cannot be underestimated. Whether the plaintiff was abused or not, it is hard to consider his career ‘trajectory’ independently of the influence of PCC.

For those reasons, while I do not entirely discount the possibility, I tend to think that it is more likely that the abuse did not materially affect the plaintiff’s career ‘trajectory’ before about the age of 25 or 26, in the year 2000, after he had evidently met PCC at the Eureka Hotel and the year in which he ultimately completed his commerce degree.

By that point the plaintiff had evidently been the general manager of the Eureka Hotel since about late 1997. In that context, he undoubtedly accumulated experience in business and management. Yet, despite the evident encouragement of PCC to pursue more ‘professional’ employment, he stayed on at the pub for a further four years.

The evidence was that the plaintiff was reluctant to leave the Eureka Hotel during this time. He said that he felt ‘safe’ there[291] and seems generally to have been treading water during that period. I have also already referred to PCC’s evidence in which it was later obvious to her why he had been reluctant to leave the pub. To me, it is from about the completion of the plaintiff’s commerce degree, at the end of 2000, that the abuse more likely affected the plaintiff’s career ‘trajectory’ by forestalling his transition into more ‘professional’ employment of the kind that he later undertook.
[291]T115.

In that sense, absent the abuse, and having regard to the otherwise likely presence and sensible influence of PCC, I tend to think the plaintiff would have entered upon that phase of his career perhaps four years earlier than he actually did. As I have earlier indicated, there is a less significant possibility that the transition could have occurred even slightly earlier than that.

Once the plaintiff started at Diageo, in about late 2004, and thereafter, notwithstanding the effect of the abuse, his career progression was relatively ‘linear’, certainly in terms of increases in earnings and the accumulation of promotions, which probably reflected his essential ability in combination with, for most of that overall period until late 2019, the assistance, support and maturity of PCC.

For all of these reasons, I tend to think that absent the abuse it is possible that the plaintiff lost some time in his early years of tertiary study and the traineeship at Carlton Football Club but it is even more likely (albeit still a past hypothetical) that the plaintiff would have set out upon properly ‘professional’ employment in about 2001, rather than late 2004, and thereafter followed a progression largely similar to that which he ultimately did follow, albeit continuing for as many as four further years until mid-2019.

It follows from the above that I consider the abuse to be likely to have had an effect on the plaintiff’s career ‘trajectory’, albeit not precisely of the kind that the forensic accountant, Mr Thompson, was asked to assume in making his calculations concerning past loss.

In that regard, taking account of the necessarily incommensurable character of the possibilities concerned, and therefore the imprecision necessarily inherent in an evaluation of this kind, I consider that the effect of the abuse upon the plaintiff’s past career ‘trajectory’ until mid-2019 is best compensated by awarding him damages for two years of earnings at a senior level prior to his psychological collapse after his retrenchment from Treasury Wine Estates.

An approach of this kind takes direct account of the likelihood, in my view, that the plaintiff would have commenced upon the essentially ‘professional’ part of his career some years earlier than he in fact did (and possibly even earlier than that), and would likely have taken about the same time to achieve earnings at a senior level as he did even with the abuse, and continued to work in that capacity longer than he in fact did and until the psychological collapse precipitated by the retrenchment in mid-2019.

That said, the fact that only two years of senior earnings’ are to be awarded and not more is in recognition of the various possibilities involved when assessing the value of such a hypothetical.

From this point, there was a degree of dispute in the submissions of the parties concerning whether or not the plaintiff’s retrenchment in mid-2019 from senior employment with Treasury Wine Estates was, in substance, caused by the effects of the abuse upon the plaintiff and his psychiatric injury.

In my view, it is unnecessary to determine that issue one way or the other, albeit that there seems to me to have been a significant likelihood that the retrenchment was hastened by the effects of the abuse inasmuch as those effects affected the plaintiff’s preparedness to travel, and the evidence of Ms Parkes tended to suggest as much.

Whatever might be said about that possibility, however, the one thing that can be said about the retrenchment is that it had a devastating psychological effect upon the plaintiff, and the degree of that effect was greatly amplified and made disabling by his thoughts and feelings relating to the abuse. In that sense, the real significance of the retrenchment is that it precipitated the present psychological collapse of the plaintiff that has rendered him essentially unable to work since that time.

In this sense, whether the retrenchment was caused by the effects of the abuse upon the plaintiff or not, the combination of the retrenchment and the effects of the abuse rendered the plaintiff unable to work in the period from mid-2019 to the present.

By contrast, absent the abuse, it seems to me to have been likely that the plaintiff would have obtained and been working in replacement senior employment during that period. In that regard, by about 2016 the experience and expertise of the plaintiff was evident in the senior positions that he had held and his evident value in the employment market was underlined by the fact that he was headhunted to take on senior employment with Treasury Wine Estates in September 2017. At that time he was also relatively young. In the circumstances, do not consider it to be likely that, absent the effects of the abuse, the plaintiff would have been out of senior work for any significant or extended period after his retrenchment in mid-2019. Nor did the defendant really take such a point in submissions.

For these reasons, I would award the plaintiff a total of four years of earnings at a senior level for his past loss of earnings as a consequence of the negligence of the defendant, being essentially two years relating to the period prior to mid-2019 and another two years for the period subsequent to that and to the present.

By ‘earnings at a senior level’, I mean earnings at the level of the position that the plaintiff ultimately held at Treasury Wine Estates prior to his retrenchment, namely about $240,000 per annum (plus superannuation). That figure is broadly consistent with the trajectory of the plaintiff’s annual earnings prior to that time,[292] and also sits with the kinds of figures referred to in some of the earnings data to which Mr Thompson was taken in his evidence.[293]
[292]Exhibit L. See also, evidence of Mr Thompson at T555.
[293]T546-548; 554-555.

On my analysis, absent the abuse, it is more likely than not that the plaintiff would have ascended to such a position and at least such earnings four or more years earlier than he in fact did, and would also have obtained and remained in replacement employment at about that level very shortly after his retrenchment in mid-2019 and until the present.

As I have indicated earlier, however, the present assessment simply involves evaluating several hypothetical and incommensurable possibilities, the more significant of which I have identified above. To those should be added further possibilities such as that the time lost prior to mid-2019 by reason of the abuse could have been more than four years as well as the fact that the assessment for the past includes no allowance for the periods which the plaintiff spent out of work after he finished with Diageo or any specific allowance for earnings between mid-2021 and the date of this judgment.

Such an evaluation must also take account of the possibility that the plaintiff’s earnings in at least the period from mid-2019 to mid-2021 could have been higher than $240,000 per annum (plus superannuation).

Overall, in my view, all of these possibilities are best accommodated and compensated by an award for the past of four years of earnings at $240,000 per annum (before tax) plus superannuation.[294]
[294]Having regard to the manner in which the lost chances of the plaintiff have been evaluated and assessed, it is unnecessary to make any further discount for the past based in the ‘vicissitudes of life’.

It follows that damages for past economic loss should be calculated as follows:

(a) For the period to mid-2019: two years at $240,000 per annum before tax, being $480,000 in substitution for and thus less two earlier years of earnings during the ‘lost’ period between 2001 and 2004, namely $54,849,[295] less tax of $137,781.95,[296] being $287,369.05, plus superannuation of $35,704,[297] being a total of $323,073.05;

(b) For the period from mid-2019 to mid-2021: two years at $240,000 per annum before tax, being $480,000, less tax of $162,194,[298] being $317,806, plus superannuation of $35,704, being a total of $353,510;

(c) Total: $676,583.05.

[295]Being for the years 2003 and 2004 recorded in Exhibit L, noting that those figures were adjusted by Mr Thompson and so are not ‘actuals’ and are also the two ‘best’ figures to reduce from the perspective of the defendant, which adds to the reasons why it is inappropriate to make any further reduction for vicissitudes.

[296]Exhibit 13. Assessed in the period 2016 to 2018.

[297]Being twice the notional figure for superannuation relating to the 2019 year on which salary the figure of $240,000 per annum is broadly based – see, Exhibit W, Schedule “K”.

[298]Exhibit 13. Assessed in the period 2019 to 2021.

Moving to consider the future, having regard to the plaintiff’s evident aptitude for the sales and management work that he ultimately settled into after late 2004, I would think that, absent the abuse, his career would likely have continued in management work of that general kind until about normal retirement age.

Inasmuch as the plaintiff gave any evidence of that kind at trial, it was given more in passing.[299] Nothing really turns upon that, however, as such evidence often has the appearance of being rather artificial or, at least, no more than formal in nature.
[299]T166.

In any event, I have regard to the fact that the plaintiff’s brothers and his wife are in essentially professional employment and that his general social milieu is one involving private school fees, private golf club membership, regular holidays and other features of middle class life that can commonly impose financial requirements until that time.

In that, I have not overlooked the reliance by the defendant upon certain statistics and the endeavours to cross-examine Ms Parkes with a view to establishing a general trend to early retirement (which was not really established in the answers given, as opposed to the questions asked).

Notwithstanding such evidence as ultimately came to be adduced on the point, however, I tend to think that the direct presentation of the plaintiff is presently of greater significance, and upon that I would consider it more likely that he would have worked to about normal retirement age.

Against that, however, particularly having regard to the fact that his wife is slightly older than him, I do not overlook the residual possibility that the plaintiff would not have worked until shortly before normal retirement age. In my view, that is a specific possibility that, together with others, is better accommodated below in the assessment of an overall discount for vicissitudes.

The next question is the likely ‘trajectory’ of the plaintiff’s career beyond 2019, absent the abuse. The contention advanced on behalf of the plaintiff was that at some point he would have progressed beyond, in effect, middle management, and to a position as a director of sales in a company akin to Diageo, Lion or Treasury Wine Estates. The contention was that in such a position, and for several years, the plaintiff would have earned in the vicinity of $300,000 per annum.

The foundation for that submission owed much to assertions about natural aptitude and ‘innate intelligence’, but might also be thought to derive some support from the general trajectory of the plaintiff’s career and earnings prior to mid-2019.[300]
[300]Exhibit L.

That said, I did not obtain any strong sense from the evidence of either the plaintiff or his wife that such a position was either his or their ‘dream’ or firm objective. I am conscious that the plaintiff was ‘jealous’ of the career success of his brothers, and one of them has held a very senior management position for some years, however absent something a little more persuasive I am not at all sure that the career ‘trajectory’ of the plaintiff would likely have contained that step. I am also conscious, in a broad sense, that more senior positions are fewer in number and more likely to be difficult to obtain and maintain.

In my view, based on the overall impression conveyed by the evidence received, it seems to me to have been more likely that the plaintiff would have remained in management positions of the kind that he held in the years leading up to 2019 and then beyond that to about normal retirement age. That kind of profile is amply supported by the kind of earnings he achieved in the years prior to 2019 and their evident trajectory.[301]
[301]Ibid.

It follows from that absent injury I would have expected that the plaintiff would have reached the kind of seniority, responsibility and level of earnings that he occupied in 2019, albeit some years prior to that, and then broadly maintained that kind of career and associated earnings profile to about age 67, namely in 2042.

On that basis, I accept that Mr Thompson’s ‘Scenario 1’ – namely $250,000 per annum before tax – is the most appropriate measure of the plaintiff’s likely earnings into the future absent injury.

Against that, as I have mentioned, it was in 2019 that the plaintiff’s ‘façade’ was finally ‘shattered’. From that point, and at present, he appears as something of a ‘shell’. In this regard, I accept the evidence that he presently could not work. The contrary is unimaginable to me – having seen the plaintiff routinely sobbing in the course of his evidence – and was not really suggested by the defendant.

The defendant suggested that the plaintiff was likely to return to work in two or three years and, from that point, was likely to return into work at about the same level of seniority, responsibility and stress that he endured in the period of years prior to 2019.

I do not accept either of those submissions. I accept the evidence of Dr Tagkalidis to the effect that the plaintiff will hereafter remain vulnerable, particularly to stress. I consider it to be most unlikely that he will return to work in any kind of senior executive position.

Nor can I envisage him returning to work within only two or three years. That seemed to be the very minimum period envisaged by Dr Tagkalidis. The thrust of Dr Tagkalidis’ evidence seemed to be that a longer period was more likely and, indeed, his ‘best guess’ was ten years from now.[302]
[302]T420.

Against that must, of course, be balanced the evidence of the plaintiff’s wife and, for that matter, his brothers. His wife, whose view it would be evident I would afford considerable weight, was doubtful that he would return to work. She thought that it would take a ‘miracle’. That view was obviously very affected by his present presentation, which I also saw, and to which I would also afford weight.

The plaintiff is intelligent, practical and possessed of both ability and valuable corporate experience. He is also a relatively young man, at 46 years of age. His brothers are in successful and established employment, as is his wife. His children are at private school. As I have noted, he has other trappings of middle class life. If he could work, I imagine that he would. When he can return to work, I imagine that he will.

This is no more than to say that I would reject any suggestion that the plaintiff is choosing not to work. Nor do I think that he will either choose permanently not to work or not ever return to the workforce.

Put simply, despite the fact that he is presently in something of a ‘heap’, the opinion of Dr Tagkalidis was that the plaintiff’s presently acute psychological condition may well ‘attenuate’ in the longer term and, beyond that, it is essentially my own assessment having seen him give evidence that the plaintiff is not really the kind of person who will permanently remain out of the workforce while those around him are doing meaningful work. That said, I obviously accept that he is and will remain damaged by the abuse.

It would be evident that I would accept the general effect of the estimation in oral evidence expressed by Dr Tagkalidis to the effect that ‘from four to five years out to ten years I think the chances [of the plaintiff returning to work] slowly increase’.[303]
[303]T420.

On that view, perhaps having regard to some of the factors earlier referred to, together with the likely entry of his daughters into senior years of school and therefore their greater independence, I would think that it is reasonable to consider that the plaintiff is likely to return to work roughly 6 years from now, namely in about mid-2027. At that point, the plaintiff would be in his early 50s and may well be thought still to have plenty to offer an employer.

By the same token, I would also think that it is likely that he would assume a position in sales and in a product area of familiarity to him. I could not see him returning to a position of significant interpersonal stress of the kind that is part and parcel of a position in senior management and perhaps in any kind of management of staff. As Dr Tagkalidis put it, it is most likely that the plaintiff would return into a position of ‘lower level, less stressful work’.[304]
[304]Ibid.

The evidence of Mr Thompson proffered essentially two alternative scenarios, concerning the plaintiff’s return to work, namely ‘Approach A’ being $80,000 per annum (plus superannuation) and ‘Approach B’ being $120,000 per annum (plus superannuation).

In oral evidence, Mr Thompson explained the former ‘approach’ as directed to ‘a sales representative type position that would be, someone who’s direct selling to customers’ and the latter ‘approach’ as directed to ‘someone with some more responsibility than simply selling to customers’.[305]
[305]T550.

That evidence was broadly consistent with plaintiff’s earnings in the positions that he held with Diageo and then later with Lion Dairy & Drinks.[306]
[306]See, summary references in the Outline of closing submissions on behalf of the defendant, pp.33-34.

In light of the evidence of Dr Tagkalidis, and, indeed, the fragility of the plaintiff so evident in the course of his evidence, I consider ‘Approach A’ to be the more likely and therefore the more appropriate.

On that basis, I would assess damages for future loss of earning capacity on the basis of Mr Thompson’s Schedules “M” and “U”, namely –

(a) Future economic loss: $1,824,888;

(b) Future superannuation: $218,856;

(c) Total: $2,043,744.00.

To that figure must be applied a reduction for vicissitudes. The parties were also in dispute about that issue and, indeed, the defendant contended for a further and ‘very significant’ reduction specifically by reference to Malec v Hutton.[307]
[307]Malec (n 224).

In my view it is unnecessary to distinguish between discounts based on Malec or for the vicissitudes of life. It is practical simply to start with the ‘usual’ discount of 15% mindful of some of the specific possibilities that have I have referred to in the evidence.

In that regard, there is the specific but residual possibility that the plaintiff would have worked to slightly short of normal retirement age. Other specific risks arise from the plaintiff’s area of work and career path. I am conscious that the kind of sales and managerial career on which the assessment for the future is premised tends to be punctuated by more than the normal movement between positions and employers together with incidents of redundancy that each carry specific risks of periods of unemployment. The career progress of the plaintiff between 2005 and 2019 essentially shows as much. By reason of those specific uncertainties, I would apply a discount for vicissitudes that is a little higher than the usual, namely 20%.

On that basis, the sum assessed for future loss of earning capacity is $1,634,995.20.

Other items

Upon the reasoning to this point, such minor dispute as existed between the parties concerning the claims for past and future medical expenses should be determined in favour of the plaintiff.

There was no dispute about the past repayment in the sum of $1,361, and that item should be accepted.

The defendant also accepted the items concerning sessions of psychological treatment.

It resisted the claim for sessions of psychiatric treatment and anti-depressant medication. It made the point that such recommendations have not come from a treater. I should say that I am also conscious of the plaintiff’s evidence that he is wary of taking such medications.

That said, I am inclined to allow those items. The presentation of the plaintiff is such that a need for psychiatric assessment and treatment is quite foreseeable and in that setting anti-depressant or other such medication might well be prescribed. I could not conclude that in that event it would necessarily follow that the plaintiff would not incur the expense and take the medications recommended.

In the circumstances, I would allow the plaintiff’s claims for past medical and like expenses in the sum of $1,361 and for the future in the sum of $19,380.[308]
[308]The latter figure is reached by accepting the plaintiff’s claimed figure of $22,800 and then discounting for vicissitudes by 15%. It seems appropriate to apply the standard discount in respect of an item more likely to be incurred in the short to medium term future.

Summary

In light of the above, I assess damages as follows –

(a) Pain and suffering – $300,000;

(b) Past loss of earnings – $676,583.05;

(c) Future loss of earnings – $1,634,995.20

(d) Other/medical and like – $20,741.00

Total - $2,632,319.25.

F Conclusion

The plaintiff suffered childhood sexual abuse as a consequence of the breach by the defendant of the duty of care owed to him as a student.

That abuse has had very significant psychiatric effects upon the plaintiff across his life and will continue to have effects upon him very likely for the rest of his life.

I have assessed general damages and damages for loss of earning capacity and medical and like expenses accordingly.

It follows that there will be judgment for the plaintiff for damages as assessed.

I will hear counsel concerning the form of orders, and costs.

[2021] VSC 633

1 October 2021