PP v DD (No 2) - [2021] NSWSC 1312

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: PP v DD (No 2) [2021] NSWSC 1312
Hearing dates: 12, 13 and 14 July 2021
Date of orders: 15 October 2021
Decision date: 15 October 2021
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Judgment for the plaintiff in the sum of $1,273,125.
(2) I order the defendant to pay the plaintiff’s costs.

Catchwords:
TORTS – General principles - Assessing damages for sexual assault – Where contemporaneous records do not support the conclusions of medico-legal experts – Inherent difficulty in quantifying loss in cases involving sexual assault
TORTS – Trespass to the person – Assault and battery – Sexual assault - Where defendant has been convicted of criminal offences against the plaintiff

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Court Suppression and Non-publication Orders Act 2010 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
BDN v McCoy [2019] NSWSC 1723
Cookson v Knowles [1979] AC 556
Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132
Cullen v Trappell (1980) 146 CLR 1; [1980] HCA 10
Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190
Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
M.B.P (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3
PP v DD [2021] NSWSC 1157
New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57
State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445
State of New South Wales v Loh Min Choo [2012] NSWCA 275
St George Club Ltd v Hines (1961) 35 ALJR 106
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720
Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Category: Principal judgment
Parties: PP (Plaintiff)
DD (Defendant)
Representation:
Counsel:
K W Andrews with R Brown (Plaintiff)
Solicitors:
Carroll & O’Dea Lawyers (Plaintiff)
Hall Partners (Defendant)

File Number(s): 2018/204001
Publication restriction: Nil

Judgment

The plaintiff claims damages for sexual assaults alleged to have been committed in 1985. At that time, the defendant was the owner and operator of the Kogarah Mecca Cinema.
The defendant is now in prison having been convicted of a series of historical sexual assault charges including in respect of the plaintiff.
The defendant denies the claims albeit, as he said on a number of occasions during the conduct of the proceedings up to the time of the hearing, he “does not seek to go behind the convictions”.
The matter has been the subject of extensive case management and considerable interlocutory skirmish between the parties, particularly relating to the nature of the defence being pursued by the defendant. The defendant was previously represented by both senior and junior Counsel who were retained to appear on the hearing but withdrew when the defendant became bankrupt. Unfortunately, the consequences of this are that, whist some issues were explored comprehensively, others were not.
I was not informed as to the reasons for the defendant’s bankruptcy but the parties agree that his recent entry into bankruptcy does not preclude the plaintiff from pursuing these proceedings.
The plaintiff claims that as a result of the sexual assaults he developed a psychiatric injury and has suffered significant loss. He says that his life would have taken a completely different turn if not for the conduct of the defendant. He seeks damages in the order of $7 million.
Kelvin Andrews appeared with Ryan Brown for the plaintiff. Following the withdrawal of Counsel, Trevor Hall, solicitor, appeared on behalf of the defendant.

The evidence

The plaintiff relied on two evidentiary statements dated 13 February 2020 and 7 July 2021. The plaintiff also gave oral evidence and was cross-examined. Both parties relied on expert psychiatric evidence. The psychiatrists participated in a conclave and prepared a joint report. The defendant relied on documentary material and, in particular, tendered photographs and a registration certificate in respect of a motor vehicle owned by him in the 1990s.
The defendant did not rely on any lay evidence, although he sought to do so by serving three statements two days before the commencement of the hearing. The plaintiff opposed the defendant being granted leave to rely on those statements.
For the reasons set out in my earlier judgment of 12 July 2021,^[1] I refused leave to the defendant to rely on those statements. The defendant’s attempt to rely on the statements followed extensive case management and interlocutory argument. Up to two days before the hearing, the defendant had not served any evidence, despite Court orders to do so. Further, he had consistently maintained that he would not be relying on any lay evidence and would not be seeking to “go behind the convictions”.
1. PP v DD [2021] NSWSC 1157.
Plainly, the attempt by the defendant to rely on evidence he had only served two days before the hearing would have caused the plaintiff significant prejudice, as the matter had been shortened from a 10 day hearing to a 5 day hearing on the basis that the only evidence on the factual dispute would come from the plaintiff, such that the plaintiff withdrew reliance on a number of other witness statements which had been served.
The matter thus proceeded on the basis that the plaintiff relied on his evidentiary statements and was cross-examined by Mr Hall on behalf of the defendant.

The plaintiff’s version of events

When the plaintiff was 14 (in 1983), he applied for a casual job as a lighting operator at the Kogarah Mecca Cinema (“the cinema”). The cinema was owned and operated by the defendant. He was interviewed by the defendant but was not given work at that time.
However, between 1983 and 1985, the plaintiff did obtain employment and worked on an intermittent basis at the theatre.
During that period, the plaintiff and his family developed an association with the defendant which was not limited to the role of the defendant as the plaintiff’s employer. The defendant would visit the plaintiff’s family from time to time and the plaintiff would spend time with the defendant over and above the time he spent just working in the cinema. For example, the defendant owned a number of classic vintage cars. The defendant would take the plaintiff for drives in those cars. The plaintiff says there were other boys who were afforded the same treatment.
The plaintiff had been to the defendant’s unit in Cronulla and then to his house in Sans Souci. The defendant used to have house parties for the cast of the Pantomime who performed at the cinema. The plaintiff would attend these house parties along with other persons invited by the defendant.
The plaintiff developed a good relationship with the defendant. Although he knew the defendant to be a middle-aged man, he felt that he was treated as an equal by the defendant. The defendant spoke to him on his level. He seemed to have a good relationship with a number of other boys known to the plaintiff, including some of his friends.
According to the plaintiff, he first recalls anything unusual happening with the defendant in about 1984 when the defendant pulled up the bottom of the plaintiff’s t-shirt to expose his lower abdomen and commented on his appearance.
Then in about April or May 1985, the plaintiff obtained his learner’s permit. The defendant offered to give him some driving lessons and did provide some driving instruction to the plaintiff. He recalls that he gave him some lessons in the defendant’s Subaru four wheel drive station wagon. The plaintiff recalls that the car had personalised black and white number plates with two letters and four numbers. The letters were “PD”.
In mid-1985, the plaintiff’s father moved to Lismore for work purposes. The defendant continued to have an association with the plaintiff, his mother and his sister.
Around the time of the August 1985 school holidays the plaintiff was aged approximately 16 years and 7 months old.
He recalls that at that time he had obtained employment at the Dolls Point BP Service Station as a customer attendant. He says that sometime after 8 June 1985, the defendant invited the plaintiff and another boy of around the same age to the manager’s office within the cinema. He says that it is also possible that there was a third boy with them at the time but he could not be sure. The defendant offered them an alcoholic drink. Both the plaintiff and the other boy accepted the offer.
The plaintiff said that prior to this time he had not really drunk before. He had consumed a beer or a glass of wine at a wedding.
He recalls that, on the night of the assaults, the defendant kept offering him alcohol and he continued to consume alcohol. He felt rather tipsy.
At that point, the defendant suggested that perhaps the plaintiff could stay with him that night and continue drinking alcohol. The defendant then drove the plaintiff to his home where the defendant asked the plaintiff’s mother whether the plaintiff could stay with him because they had a commercial to prepare for a Canadian beer company the following morning.
The plaintiff’s mother agreed, presumably because she had come to know the defendant and trusted him. After this, the defendant took the plaintiff back to the manager’s office where they consumed more wine. The plaintiff recalls the defendant asking him about whether he knew how people got AIDS. The defendant then commenced to drive the plaintiff to the defendant’s home at Cronulla. On the way, they stopped at the defendant’s mother’s house. The plaintiff recalls that he either passed out or vomited whilst he was there.
In any event, they then proceeded on towards the defendant’s house in Cronulla. The plaintiff says that whilst the defendant was driving and the plaintiff was in the passenger’s seat, the defendant reached over and grabbed his penis through the outside of his clothing, making a comment to the effect of “Look at his little dick”. The plaintiff does not recall anything else happening in the car. That conduct is said to constitute the first assault upon the plaintiff.
On arrival at the defendant’s house, they went into the bedroom. The defendant helped the plaintiff undress. The plaintiff says that he recalls it hitting him that they were going to be sleeping in the same bed. The defendant took his clothes off. They laid on the bed. The defendant pulled the plaintiff’s underpants down and commenced to masturbate the plaintiff. At the same time he was masturbating himself. The defendant grabbed the plaintiff’s hand and placed it on the defendant’s penis. The plaintiff recalls that he felt sore. The defendant obtained some form of baby oil.
At some point the defendant ceased masturbating the plaintiff and performed fellatio on him. Then at some point later, the defendant asked whether the plaintiff wanted him to stop. When the plaintiff responded that he did, the defendant stopped. The defendant then asked the plaintiff whether he would mind sucking the defendant’s penis and then asked whether he would like to do it with other boys.
He referred to what other boys did. According to the plaintiff, the defendant eventually gave up trying to convince the plaintiff to do anything. They went to sleep. The plaintiff woke up at 7.00am the next morning feeling very seedy and hungover. Whilst the plaintiff was in the shower, the defendant came into the shower but nothing occurred. The defendant drove the plaintiff to work at the service station that day.
The masturbation of the plaintiff by the defendant on the bed is said to constitute the second act of assault. The act of fellatio on the bed is said to constitute the third act of assault.
The plaintiff next saw the defendant a week or two later when the defendant came to the plaintiff’s family home. Other than mentioning it to another boy, he did not tell anyone about that which had occurred that night.
In February 1986 the plaintiff moved with his family to the Lismore area to join his father. The plaintiff says that the defendant never mentioned the events of that night to him again.
The plaintiff completed Year 12 in 1986 in Lismore. After leaving school, he commenced officer training at Duntroon in Canberra. He resigned from Duntroon effective from 21 May 1987. The plaintiff says that subsequent to leaving the military, his life has not developed the way that he hoped it might because of the consequences of the defendant’s assaults.

The defendant’s position

Although it was an agreed fact that the defendant had been convicted in respect of offending involving the plaintiff, in these proceedings the defendant denied the conduct alleged by the plaintiff. He was entitled to do so as evidence of a criminal conviction is not generally admissible to prove the facts in civil proceedings.^[2]
2. See s 91 of the Evidence Act 1995 (NSW).
Whatever uncertainty arose because of the defendant’s amendments to his defence and perhaps attempts to overcome earlier directions of the Court to narrow the issues, I took the defendant’s position to be that he continued to deny the conduct.
In particular, he denied that he owned a motor vehicle of the type described by the plaintiff in his evidentiary statement. He tendered photographs of a vehicle which he owned in the 1990s as if to prove that it was a different type of vehicle from the one described by the plaintiff and thus the plaintiff’s version could not be accepted.
Of course, proving that he owned a particular type of vehicle in the 1990s could hardly be a basis for establishing that he thus could not have owned a different type of vehicle in 1985.
The plaintiff was cross-examined by Mr Hall on behalf of the defendant. He was cross-examined on the plaintiff’s description of the vehicle. It was put to him that the defendant owned no such car in 1985. It was also put to him that the assaults referred to by the plaintiff did not occur and that the defendant had not engaged in the conduct as described by the plaintiff.

Did the assaults occur?

The plaintiff bears the onus of proof on the civil standard. The absence of any direct evidence from the defendant does not compel me to accept the plaintiff’s evidence. The cross-examination of the plaintiff was designed to cast a doubt on the credibility of the plaintiff.
In the end the matters raised by the defendant do not cause me to doubt whether the events occurred. I accept the plaintiff’s version of events. Indeed, whether or not the defendant owned a car of the particular type described by the plaintiff is not critical to the outcome. The evidence relied upon by the defendant does not cause me to doubt the plaintiff’s description of the car in any event but, even if there was some error in the description of the vehicle, it does not follow that I must reject the plaintiff’s description of the events constituting the assaults.
I accept that the events occurred and accept that the defendant behaved towards the plaintiff as the plaintiff says. The plaintiff was given alcohol by the defendant who then organised for the plaintiff to stay the night at his premises. He took advantage of the plaintiff in his intoxicated state. Whist the plaintiff did not physically resist, it is apparent that he was shocked and temporarily froze before protesting. He did not consent to the defendant sexually touching him.
The defendant’s conduct towards the plaintiff constituted a form of trespass to the person. The plaintiff pleads that it was a form of assault, abuse and sexual assault. It might be more accurately described as assault and battery. Assault may be the creation of an apprehension of imminent harmful conduct. Battery is the carrying out of such harmful conduct.^[3]
3. Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [21] (per Leeming JA, Beazley P and Ward JA agreeing).
The defendant did not raise any issue as to the precise nature of the cause of action. The defendant, having sexually assaulted the plaintiff on that night in 1985, the issue which arises is whether the plaintiff is entitled to damages from the defendant.

Assessing damages for sexual assault

The plaintiff seeks both compensatory and aggravated damages (another form of compensatory damages). Sexual assault is an intentional tort. As set out in s 3B(1) of the Civil Liability Act 2002 (NSW) (“CLA”) the provisions of the CLA do not apply in respect of civil liability for sexual assault except that ss 15B and 18(1) as well as Parts 7 and 2A continue to apply. None of those sections have any relevance to this matter.
As such, damages must be assessed under the common law. The restrictions and limitations on the awarding of damages contained in the CLA do not apply. Damages assessments under the common law may be higher than assessments governed by the CLA as, for example, the 3% tables apply on assessing future loss and the restrictions on interest do not apply.
Compensatory damages are intended to put the plaintiff back into the position that he would have been but for the conduct of the defendant.
Aggravated damages are also a form of compensatory damages^[4] which might be awarded to a plaintiff for stress, anxiety and hurt feelings that he or she suffers, over and above for any injury sustained arising from the particularly egregious conduct of a defendant towards the plaintiff.
4. New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31] (Gleeson CJ, Gummow, Kirby, Heydon And Crennan JJ).
The awarding of aggravated damages for sexual assault might be particularly apt in circumstances in which the person the subject of the assault suffers the long term burden of shame, embarrassment and indignation in addition to a psychiatric illness arising out of the deliberate conduct towards him. Aggravated damages are normally assessed as a lump sum over and above the allowance for general damages.
Damages are rarely awarded for hurt feelings, distress or emotional issues without the suffering or development of a recognised psychiatric illness.^[5]
5. State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 at [21] (Spigelman CJ).
However, in some claims arising out of historical sexual assault, the plaintiff may not develop a recognised psychiatric illness until many years after the actual assault. It may be that the symptoms increase or accumulate to the point when they are such that a diagnosis of an illness is available and appropriate.
In my view, this is what has happened in this matter.
This makes assessing damages challenging, particularly when the expert medico-legal psychiatrists have made assumptions which are not supported by the evidence.
Having said that, provided that the Court accepts the causal relationship between the development of a psychological illness (at some time) and the assault, the allowance for pain and suffering may have regard to matters such as long term feelings of guilt, shame and emotional issues such as difficulties in maintaining relationships. Further, like any assessment of damages consequent on tortious conduct, the amount of the damages is not in some way measured against the gravity, severity or frequency of the assaults. Damages must be assessed having regard to the effect on the plaintiff.
Assessment of pecuniary loss is also difficult in a historical sexual assault case in circumstances in which the plaintiff has kept the fact that he was assaulted hidden for many years. Indeed, as society has come to understand in more recent times, that has been the norm rather than the exception.
Although the Court must not shy away from assessing damages even though the task may be difficult, the plaintiff bears the onus and must establish the losses for which he seeks compensation and the causal connection between those losses and the assaults committed by the defendant. He must establish causation and loss on the civil standard, that is, on the balance of probabilities.

I must assess causation in a practical and common-sense way. I must consider the question of causation in the framework in which it arises in this matter, that is, in the context of a claim for damages arising from a historical sexual assault. Causation is assessed by looking backwards at the events that have occurred and considering whether there is any causal connection between the conduct of the defendant and the events which have befallen the plaintiff and the development of his psychiatric illness since the incident.
Contemporaneous evidence can be critical when looking backwards at behaviour and events with the later knowledge of the assaults. The absence of any reference to the assaults may not be surprising.
On the other hand the absence of any reference to what is now known to be behaviour, conduct or events consistent with the suffering of sexual abuse cannot be ignored, particularly if the available evidence does not reveal any such behaviour or events of the type now known to be consistent with the effects of sexual abuse.
Importantly in this case there is a distinction between a finding that the assault caused an event to occur (for example in this case that the plaintiff ended his career in the military) and assessing whether the plaintiff lost the chance of achieving something (that is a different career or a higher income) on the loss of a chance basis set out in Malec v J.C. Hutton Pty Ltd (“Malec v Hutton”).^[6]
6. (1990) 169 CLR 638; [1990] HCA 20.
Assessing damages is necessarily more an impressionistic than a formulaic exercise. There is a tendency for litigants to rely on extensive forensic accountant’s reports as if mathematical calculations in some way establish loss. In reality, matters such as taxable income, tax rates and average weekly earnings should be capable of agreement between the parties.
Expert accounting evidence is of little assistance if the fundamental assumptions behind the analysis are not established. Further, as in this case, exclusive reliance on medico-legal expert psychiatric evidence can lead to evidentiary difficulties when both the assumptions which the psychiatrist has been asked to make and the assumptions made by the psychiatrist are not supportable having regard to other evidence.

The plaintiff’s narrative

The plaintiff was cross-examined on damages issues but the objective of the cross-examination was not to challenge the major events that have happened in the plaintiff’s life since the assaults but rather to dispute that it could be said that his life would have turned out completely differently but for the assaults.
That is, the essential propositions put on behalf of the defendant were that, at least until later years, his career path was not affected by the assaults; that he did not develop any psychiatric illness whilst at school or whilst as a young person; that he suffered from other problems which might have impacted upon his career; that his career path up to the time when these events were disclosed and criminal charges were pursued against the defendant was “normal” and that he has not had any problems dealing with his sexuality at any time since his early twenties.
In these circumstances, there is little dispute as to the plaintiff’s narrative of his life, at least for the 35 years after the assaults. However, there is a significant issue as to whether his life might have been different absent the assaults, at least until the assaults were revealed to the police and all the events of the past ten years or so.
The plaintiff was born in 1968 and is thus currently 52 years of age. Shortly after his birth he was adopted. He only met his birth mother when he was 21. He lived with his parents throughout his teenage years, although it seems that his father moved to Lismore in about 1985 and he moved to join him in 1986. He no longer has any contact with his father. He is in regular contact with his mother.
His father was a production engineer. His mother worked as a volunteer religious education worker in schools. He described his behaviour as a child as either high spirited or a little turbulent. He says that he was brought up to be a strict Christian albeit he tested the boundaries. He says his mother was conservative. He says that his family circumstances aggravated the shame he felt arising from the assaults.
He lived in Cronulla, Newcastle and Sans Souci. He attended the Sydney Technical Boys High School which was a selective school for academically gifted students. He left that high school in 1986 to move to Lismore.
As a teenager, he was interested in cars, boats, planes and old movies. He was involved in sport. He liked sailing. He has never suffered from any sexual or physical abuse other than at the hands of the defendant, albeit he had the view that at least on two other occasions as a child he had felt that two other persons had wanted to molest him.
He worked for the defendant from time to time between 1983 and 1985. In 1985, he also obtained part-time employment in a service station.
He says that it was his intention to become an officer in the Australian Defence Force. He had been in the Army reserves and cadets as a teenager. On completing the HSC in 1986, he joined the military commencing at Duntroon in January 1987. He had been living with his parents up to the time that he went to Canberra. He lasted in the Army only for a period of approximately 4 months.
He says that he resigned from the military because he was having difficulty reconciling what the defendant had done to him. He says that he felt guilty about what had happened. He had been brought up in a strict Christian household and he was ashamed of what had happened.
He recalls that when entering Duntroon, he was required to sign some papers and declare that he had never had a homosexual experience. He was aware that the Army considered homosexuality unacceptable. There is some uncertainty as to when he recognised his bisexuality but on his own evidence and the evidence of the psychiatrist on which he relies his sexuality was of some significance in causing him to leave the military.
There is an issue between the parties as to why he left the military and I will come to that later in the judgment. There is no dispute that he lasted only a short period in the military.
After leaving the military, he worked for a number of companies. He initially worked for a computer distribution company, Imagineering, for a period of approximately 12 months. After leaving that job he went travelling for a period of 3 years. He was based in London. He came home for a period of 5 months for his 21^st birthday. He then moved back to London and spent some time in Scandinavia. He undertook various jobs including working as a storeman, picking strawberries, working as a bartender and working at a gentlemen’s club. He similarly worked in short term jobs in England, including at the Glastonbury Rock Festival and as a driver for a party hire company.
He returned to Australia in 1991, again undertaking short term jobs for a period until he commenced employment with Savills, working as a valet parking cars. During that period he had an accident. He hurt his knee. He slipped over and received compensation for his period off work.
In 1996 he worked for the Australian Bureau of Statistics for approximately a year.
During the period 1997 to 2001 he worked in various jobs including as a pickup and delivery driver servicing prestige car dealerships.
In 2001 he sustained an injury to his left knee. He underwent surgery.
In 2002 he undertook a Certificate II in IT at Wollongbar TAFE. It was a 6 month full-time course.
In 2003 and 2004 he obtained his qualifications as a scuba diving instructor. He then moved to Cairns for a period of 12 months and worked in dive shops.
Between 2005 and 2009 he completed a Bachelor of Media at Southern Cross University. He worked in various jobs whilst doing so. After completing his course, he worked as a videographer/cameraman, albeit he says that was a voluntary job.
Since 2013 he has been on the disability support pension. He says that he has been on the pension because he continues to suffer from depression and anxiety as well as PTSD. From time to time he has done some casual videography work but the money he has received has been extremely limited.
In 2018 he undertook some casual cleaning work. He was earning $70 per week. By the time of the hearing, he remained on the disability support pension because of his psychological state.
He was never married and does not have any children. He identifies as bisexual (which is said by his psychiatrist to be causally relevant).
He says that since leaving the military he has struggled to hold down a job and most of his work has been short term, part-time or only lasted for a limited period. However, he does not identify any periods prior to 2012 when he was unemployed for any lengthy period, unfit for work due to a psychological incapacity or unable to find a job. His history is more one of difficulty settling on a career than one of long term unemployment.
He says that his earnings have been limited and well below what he might have earned had he stayed in the military or even if he had earned average weekly earnings.
I do not understand the defendant to be submitting that the plaintiff has not suffered from any psychological condition since he has been on the disability pension (that is since 2013) but rather that there may be a combination of factors leading to the development of that condition in 2012 and further that his life story and general progression has prior to that time, in effect, been “normal”.
The plaintiff’s counterfactual, that is, what would have happened to him but for the conduct of the defendant, is that he would have entered the military in the same way as he did in 1987 but that he would have progressed through the ranks to the rank of officer/pilot. He would have remained in the military for a period of 20 years. At that time, he would have retired on the full pension and obtained work as a commercial pilot. By adding what he says he would have earned in the military as an officer and then as a commercial pilot with sums for interest and general damages he says he is entitled to a sum of $7 million.
He says that, in the alternative, even if he might not have obtained work as a commercial pilot after leaving the military he would have earned at least average weekly earnings and continued to receive the military pension over and above his earnings.
There is a good deal of historical and contemporaneous documentation which might bear upon the issues as to what happened to the plaintiff along the way and whether he might have achieved what he hoped to achieve in terms of his career.
It is a somewhat remarkable feature of this case that, other than some notes in respect of two short periods of counselling and his GP’s notes, the plaintiff does not rely on any treating material. That is because he has essentially had no treatment for any psychiatric condition despite his condition being diagnosed in 2012.
He says that after taking Cipramil on occasions (the notes suggest once for less than a month) he suffered side effects. He says he has never been able to afford psychiatric treatment.

Effect on schooling

The defendant put to the plaintiff that the assaults had no immediate effect on his schooling. He disagreed saying that it had a slight adverse effect but he was not a psychiatrist. He also agreed that his performance at school was consistent, even after the assaults.
His 1984 school report includes commentary that he had done very well in some subjects but there were some weaknesses. His results were described as solid or good or consistent. Although he was at a school for academically gifted students his pre-assault reports do not suggest that he was achieving above average results. The comments in his June 1985 report tend to suggest that his results were pleasing but he could work harder and that he needed to take a more serious approach. The comments in the November 1985 report were almost identical. That is, that he needed to work harder and make a more consistent effort.
He then moved to a school in Lismore. In May 1986, he applied to join the Army reserve. His marks and comments for June 1986 again tend to suggest that his work and results were solid but he could do better, needed to take a more consistent approach and needed to be better organised.
There is nothing in the post-assaults school reports which would reflect any significant downturn in his performance at school. In any event, the plaintiff says that he achieved what he wanted to achieve in the sense that he was accepted into Duntroon.
He received a reference from Stuart Whelan, a JP, dated 24 March 1986. Mr Whelan said that he had known the plaintiff since 1982. He was charged with the responsibility of assessing the potential of young men and women for promotion within the Air Training Corps. At the end of 1985 the plaintiff was selected to attend a junior NCO course. Mr Whelan says that throughout his time in the Corps he had proven to be a dedicated young man with interests in aviation. He believed that the plaintiff had the required personal qualities to undertake a service or civilian career and recommended him.
Similarly, he received a certificate when he left the Sydney Technical High School at the end of Year 11. He was said to be a courteous and well-mannered young man who had shown diligence in classwork and constant application in independent study. He had shown interest in various activities, one of which included cadets.
The available documentation does not suggest that he had become withdrawn, ceased studying, ceased attending school or that the assaults had an adverse effect on his performance. Both his own evidence and the contemporaneous documents are inconsistent with a key assumption underpinning the conclusions made by his medico-legal expert.
That is not to say that the plaintiff was not suffering in silence or hiding his sense of shame, but the only finding available is that he was able to complete his schooling successfully enough so that he could pursue his chosen career.

Entry into and departure from the military

In November 1986 he was accepted into the military and assigned to the Royal Military College at Duntroon (“RMC”). He commenced his training at RMC in January 1987. In February or March 1987 he requested a discharge. He was discharged from the military in May 1987. The fact that he first requested a discharge within 6-12 weeks of commencing at RMC may be of significance.
In his evidentiary statement the plaintiff refers to his time with the military with reference to his recollection that he needed to declare that he had never had a homosexual experience and that homosexual activity would be investigated and charged accordingly. He did not refer to any specific events which caused him to leave the military, albeit he maintains that he could not cope with life in the military because of the continuing effects of the assaults.
He was cross-examined about his time in the military. It was put to him that he resigned from Duntroon in May 1987 after only around four months.
He agreed that he was disciplined in relation to a number of minor offences whilst he was there. One of the offences was that he was participating in an entertainment activity, which involved the consumption of alcohol. He received disciplinary charges because of this conduct. He also received a disciplinary charge on the basis that he had failed to groom himself properly and failed to keep his room tidy.
He says the reason he was charged with those later offences was because he was helping another group of people.
In cross-examination he said that:

“We were cadets. We all got these silly little charges for [being] unshaven, [having] unmade beds…we were cadets that’s what they used to do.”

I accept that, as he says, these charges were minor. They do not represent a pattern of behaviour consequent on any mental health issues but they do reflect other comments made about the plaintiff as part of the discharge process. Both expert medico-legal psychiatrists assumed and concluded that these minor charges were indicative of a psychological illness. Both the plaintiff’s own evidence and the records suggest to the contrary.
He agreed that his father wanted him to remain but he had made up his mind to leave. It was put to him that the charges and comments contained in the documents were the reasons he left the military. He said they were not in their entirety. Of course, this must be so as the misconduct charges did not arise until some time after the first reference to discharge appearing in the records. He disagreed that they were the dominant reason.
In re-examination he said that he recalled that he was having difficulties getting to sleep, ruminating on events, particularly the assaults which affected his concentration. Even accepting that be so, that does not provide an explanation for his decision to seek discharge apparently within weeks of commencing at Duntroon.
His medical records whilst he was in the military were obtained and admitted into evidence. There is reference to a lower back pain strain with anticipation of a full recovery. There is no reference to any psychological problems.
The plaintiff was subject to psychological assessments as part of the process of applying and then on discharge. On 24 September 1986 the plaintiff was described as a steady young man who presents himself well. He was honest, reliable and likeable but somewhat overshadowed by other members of his group. He lacked experience of leadership but showed potential.
In May 1987 he was described as being a person who failed to adjust to life at RMC. It is not necessary that I repeat the comments except that there is no hint of the plaintiff suffering from insomnia or an inability to concentrate. There is a reference to strong pressure from his family to succeed. There is also reference to the plaintiff being keen on flying but having a lack of funds. There is a suggestion that on discharge he intended to pursue a career in the Air Force.
There is nothing in the records which points to the plaintiff having any difficulties at Duntroon because of any anxiety, distress or psychological problems. Rather, the records tend to suggest that he had difficulty fitting in with the requirements of the military and that he left of his own accord, perhaps to pursue flying.
Again, the absence of any contemporaneous records does not mean that the plaintiff was not experiencing the feelings to which he has referred but there is really nothing in any records which tends to suggest that he was suffering from any psychiatric illness or that his ruminations led to him leaving the military at that time. Further, the contemporaneous records in this matter, including psychological assessments, rather detract from the essential proposition relied upon by the plaintiff.
Nothing has been tendered which might indicate what actually happened after he left Duntroon. There is no evidence that he pursued any career in the Air Force. There is no evidence that he attempted to join the military at some later stage. There is no evidence that at some later stage he sought to pursue a career in aviation.
Rather, the only evidence as to what happened comes from the plaintiff’s own narrative. On his chronology he commenced work with Imagineering within a month and worked for a year before heading off overseas to travel and work for a number of years.

Other records

There are no employment records. There are documents which confirm the completion of the scuba course, his IT certificate and his university results for 2005 to 2009 when he completed his Bachelor of Media. His performance reflects what might be viewed as a standard range or results, being some distinctions and some withdrawals. He has provided a limited number of tax returns which is again understandable due to the passage of time, except that he has not tendered any tax returns for the past ten years. His expert accountant has made assumptions as to amounts he might have earned for most of the years prior to his earnings being evidenced by his tax returns and then described those earnings as his actual earnings for the purposes of calculating loss.

Medical evidence

There are no medical records or reports for the period 1987 to 2010 other than psychological assessments prior to and during his time at Duntroon. The Medicare records for the plaintiff for the period 1985 to 2010 do not suggest any unusual pattern of consultations.
Over that 25 year period, the plaintiff visited doctors from time to time but there is no evidence of any medical treatment which might be referrable to any psychological issues.
There is no evidence of any complaint to or referral to any health professional for any issues related to his mental health. Nor does the plaintiff say that he made any such complaint or sought any assistance.
The medical evidence consists of:

reports of psychological assessments undertaken whilst the plaintiff was in Year 12, on commencing in the military in January 1987 and then leading up to his discharge from the military in May 1987 (on which I have already commented);

notes of his general practitioner from 2010;

notes of job capacity psychological assessments;

notes of psychological counselling undertaken by the plaintiff in 2019-2020;

reports obtained for the purposes of these proceedings being:

report of Dr John Baker, consultant psychiatrist, dated 19 July 2015 obtained by the plaintiff’s solicitors;

report of Dr John Baker dated 15 January 2018 obtained by the plaintiff’s solicitors;

report of Dr John Baker dated 23 September 2019 obtained by the plaintiff’s solicitors;

report of Dr Alex Apler, forensic psychiatrist dated 28 June 2017 obtained by the solicitors for the defendant;

report of Dr Alex Apler dated 23 May 2019 obtained by the solicitors for the defendant; and

the joint expert psychiatrist conclave report prepared by Dr Baker and Dr Apler on 1 March 2021.

There is a body of literature and expert analysis which might assist the Court in assessing any relationship between the long-term pattern of behaviour and the effects of the sexual abuse.
In some cases there may be contemporaneous records (not necessarily medical records) which point to a victim of such an assault suffering for undisclosed reasons. There may be a record of behaviour which when considered in the context of and with the later knowledge of the sexual assaults might be indicative of the type of response victims often make to such assaults.
There may be evidence from persons who knew or dealt with the plaintiff at various stages which might amplify or suggest behavioural or other issues which might, when looking backwards, be viewed as referrable to the sexual assault.
In this case none of the records, assessments, university results, or any documents pre-2009 tend to suggest that the plaintiff was suffering from any psychological problems in the nature of depression.
In the 2000s he successfully completed the courses he chose to undertake (three different courses). Indeed, it is apparent that he was able to both work and complete a university degree over the same period from 2005-2009.
Whilst he has had many jobs, there is no evidence of long term unemployment. Whist he was a regular user of cannabis he does not say that his cannabis use ever caused any problems at the workplace. Further he specifically denies alcohol abuse (which is contrary to the conclusion drawn by his medio-legal expert).
In these circumstances it is necessary to carefully consider all of the medical evidence.
The notes of the general practitioner commence in 2010. For the period April 2010 to October 2012, the plaintiff saw doctors at the Hyde Park Medical Centre in Sydney from time to time for various standard type medical ailments. No reference was made to any psychological complaints until 23 October 2012 when the plaintiff informed Dr Yap that he had recently been unemployed and that he was a witness in a paedophilia case as a victim for the past three years and he required a referral to a psychologist.
From then on, the plaintiff attended Dr Yap from time to time mentioning his psychological problems. In April 2014, he said he did not want to see a psychologist but wanted a referral to a psychiatrist. The only evidence of psychological counselling over that period was for 4 months in 2013.
There is reference to the plaintiff taking Cipramil on one occasion for less than a month. That is, he had been referred anti-depressant medication but he was not taking it.
In March 2018, he referred to injuring his left knee doing jiu-jitsu. He said he was keen to return to jiu-jitsu as soon as possible as it helped with his mental health.
In March 2019, he saw Dr Natasha Beg, complaining of abdominal issues. On examination, the doctor said he looked systemically well and was not in distress.
The notes and records of John Zammit, a psychologist, who provided 10 counselling sessions to the plaintiff between 24 January 2013 and 4 April 2013, are also in evidence. The purpose of the therapy was overcoming psychological barriers in searching for and securing employment. The plaintiff identified key issues being accommodation, employment and his relationship with his partner at the time. He was suffering from anxiety.
As the notes record, there were a number of key events in the plaintiff’s life which had impacted upon his psychological state including his treatment as a child by his adopted parents, sexual abuse, school bullying behaviour and loss of relationship with his partner. The counsellor was providing person-centred therapy seeking to manage the loss and grief affecting the plaintiff in a number of ways, particularly, in relation to his future relationship with his partner.
Finally, there are the notes of the counsellor he saw on a number of occasions in 2019-2020. These are significant as, at least as referred to in those notes, the major stress in the plaintiff’s life at that time was this case. They also point to a more optimistic prognosis once this case is over.
The plaintiff was keen for it to end so that he could get on with this life. He was angry with himself for being so obsessed with his abuser and stressed by what was happening with his case. He identified his shame and regret (arising out of the assaults).
He was upset that he was being put through this process by the defendant. He was concerned for his mother and the effect the legal proceedings were having on her.
Further he had ideas for future employment. He wanted to work with people with disabilities. He wanted to tutor a school student.
So that:

the psychological assessments of the plaintiff undertaken in the approximately 2 years subsequent to the assaults do not suggest that he was suffering from any psychological problems. The assessments are to the contrary. That does not mean that I would necessarily reject the plaintiff’s evidence of his feelings of shame and guilt and other longer term emotional problems (which I do not reject) but I would not simply ignore these assessments in favour of the retrospective analysis undertaken by a medico-legal expert undertaken years later; and

the only other records of any psychological assessment are for 2013 and 2019-2020. Those records suggest that the plaintiff’s current psychological problems are multifactorial.

The medico-legal evidence

The parties asked the psychiatrists they retained to assume slightly differing facts. They came to differing conclusions on their review of the documents to which I have already referred. Their opinions are also different. It is apparent from their conclusions that their opinions were very much based on the history they originally obtained from the plaintiff and subsequently gleaned from the documents.
They were not provided with any records from his schools or time in Duntroon for the purposes of preparing their first reports. They were subsequently asked to comment on the material to which I have referred and prepared further reports.

The content of the reports

Dr Baker considers that having regard to the history provided by the plaintiff and in particular a decline in his performance at school, the plaintiff developed a psychiatric illness almost immediately after the assaults and has suffered from symptoms since, albeit that that they have accumulated over time.
Dr Apler considers that the material and history do not support the development of any psychiatric illness until 18 months after the assaults, referring to “the documented onset” of psychiatric symptoms 18 months after the assaults. Dr Apler opines that as the illness did not commence until 18 months after the assaults it could be related but he does not consider that it is.
It is notable that both doctors offered a diagnosis and opinion initially without reference to any of the contemporaneous documents. When provided with the documents (although not all of them as they appear not to have received the notes of the counsellor for 2019-2020), Dr Apler changed his opinion but nothing in the documents caused Dr Baker to alter his views.
Dr Apler concluded his second report by stating “[the] enclosed records change my opinion concerning causation, as I have indicated above. It is unlikely that his psychiatric condition is related to the alleged abuse”.
Dr Apler referred to the documented onset of his psychiatric symptoms as happening whilst at Duntroon. This is a reference to the fact that he faced several disciplinary charges. However, the plaintiff described those charges as minor and the sort of things cadets regularly received.
I do not understand how the receipt of those charges could be viewed as documentary evidence of a psychological condition. Yet, that is the basis on which Dr Apler accepts that the plaintiff developed a psychiatric illness 18 months after the assaults.
Dr Apler refers to his family relationships as other matters which could be a factor in the development of his psychiatric condition but says this is uncertain. There is reference to this in the reports of the counsellor.
Dr Baker considers that by November 1985 the plaintiff was beginning to be affected by the sexual abuse. He noted that he was absent from an exam and considered the comments in his school reports (that the plaintiff was not improving and he needed to work harder) as significant.
Dr Baker considered that within 18 months of commencing employment the plaintiff’s career path was irreparably damaged by these psychological conditions. That opinion must be based on his view that the plaintiff was already suffering from a depressive disorder and that this forced him to leave Duntroon.
Both doctors agreed that his treatment has been reasonable and necessary but insufficient to date. Dr Apler considers that the plaintiff’s cannabis abuse is a priority. Both doctors agree that the plaintiff would benefit from psychiatric treatment.
Dr Baker says that he would benefit from inpatient psychiatric treatment at a cost of $30,000. Dr Apler says he would not recommend such inpatient treatment without first attempting adequate treatment on an outpatient basis.
Dr Apler considers that his future capacity for employment depends on his progress with treatment.
Dr Baker notes that whilst the plaintiff has attempted to undertake film work, he has not been remunerated. This is contrary to the history obtained by Dr Apler, at least as recorded in his report. Dr Apler obtained a history of the plaintiff working and being paid for film work whilst receiving the disability pension.
So at least prior to giving oral evidence the effect of Dr Baker’s opinion was that the plaintiff has suffered from a psychological illness since almost immediately after the assaults and that this had irreparably damaged his career specifically in the military.
The effect of Dr Apler’s opinion was that the plaintiff first experienced psychological symptoms 18 months after the assaults which became evident through the misconduct charges. However, his psychological condition is not related to the assaults.
The problem with both doctors’ opinions is that neither the contemporaneous records nor the plaintiff’s evidence support the assumptions and conclusions of fact which they have made.
There is an immediate problem with accepting Dr Apler’s opinion that the plaintiff first developed a psychiatric illness whilst at Duntroon which manifested itself in poor behaviour and misconduct charges. The misconduct charges are said by Dr Apler to be documented evidence of psychological illness. They are not and could not be, even according to the plaintiff. To the extent that there is documented evidence of his psychological state before and during his time at Duntroon, it is contained in the psychological assessments undertaken at the time.
Further, the plaintiff had decided to seek a discharge from Duntroon within 6-12 weeks of commencing there. There were no misconduct charges prior to that time and nothing at all which would suggest that the plaintiff was having difficulty completing the coursework through insomnia, an inability to concentrate or anxiety.
Further Dr Baker’s conclusion that the plaintiff’s school performance deteriorated immediately cannot be accepted. At its highest the plaintiff said that the assaults had a slight adverse effect on his school performance but agreed that the results (that is pre and post) were generally consistent. Dr Baker appears to conclude that the plaintiff had developed psychological symptoms which were manifesting themselves within a short period of the assaults, having regard to the school reports. Neither the content of the school reports or the plaintiff’s own evidence support this conclusion.

The oral evidence

The problems with Dr Baker’s opinion are highlighted by his oral evidence.
Dr Baker and Dr Apler gave concurrent evidence. However, in reality Dr Apler did not give any evidence at all because he was not asked any substantive questions by either party. Mr Hall focused on cross-examining Dr Baker. Mr Andrews asked some limited questions of Dr Baker following Mr Hall but did not challenge anything Dr Apler said.
That may have been a forensic decision made for very good reasons having regard to the content of the joint report. Further, there were matters in Dr Apler’s report relating to the information provided by the plaintiff which might have caused some concern, such as Dr Apler’s suggestion that the plaintiff told him he had been working whilst on the disability pension but did not want that disclosed.
However, as it turned out, Dr Baker’s oral evidence was more disadvantageous than advantageous to the plaintiff, at least in terms of establishing that the plaintiff was suffering from a psychological illness in the years following the assaults and that his departure from the military was causally related to the assaults.
In the end, Mr Hall’s cross-examination of Dr Baker was forensically successful, no doubt in part because of the questions he asked but also because of the way in which Dr Baker responded to the questions. Either Dr Baker had difficulty with the questions or was incapable of providing a direct answer on quite a number of occasions to questions which were relatively simple and benign.
Further, I formed the view that his answers tended to be rather generic, that is, with regard to the literature and the standard well-known responses to sexual abuse, rather than specific to the plaintiff. The questioning of Dr Baker on a number of topics tended to suggest that he had drawn conclusions or made assumptions critical to his opinion which were not otherwise established or are expressly negated by the evidence.
Dr Baker was cross-examined about the relationship between alleged alcohol abuse and him leaving the military. At one point, Dr Baker said that alcohol was a major reason why he was not successful in Duntroon. This is apparently a reference to the one misconduct charge which involved the plaintiff (at the age of 18) being in a bar in a facility where he was not supposed to be. There is just no evidence that the plaintiff was abusing alcohol whilst at Duntroon. The plaintiff did not say so himself.
I accept that the defendant giving the plaintiff alcohol at the time of the sexual assaults might have been the plaintiff’s first real experience with alcohol but it does not follow that in some way he was unable to control his alcohol consumption thereafter. This is not a case in which there is any evidence of the victim of sexual assault turning to alcohol for solace.
Similarly, Dr Baker was cross-examined about the alleged substance abuse issues. Again, it is clear that the plaintiff did not commence using cannabis until his early twenties. Again, this is not a case in which the plaintiff, as the victim of sexual assaults, has turned to drug use which has then impacted upon his ability to function in society. There is no evidence that his cannabis use has ever prevented him from working or caused him to leave a job. In his statement he says merely that he has used cannabis periodically.
Further, in terms of the significance of the alleged misconduct charges, I reject the idea that an 18 year old being disciplined for failing to make his bed on one occasion or being unshaven on another (when the plaintiff himself sought to explain those matters in an innocent way) is indicative of the plaintiff suffering from a psychiatric illness.
In any event, Dr Baker offered a further opinion for the plaintiff leaving Duntroon during the following exchanges (which are indicative of other exchanges on other topics):

“Q: Dealing with what you say are the major reasons that the plaintiff failed to succeed at Duntroon, I just want to be fair to you, you are aware that the plaintiff was charged with a number of military offences. Is that correct?
A: Correct.
Q: Those offences were, I think, one count of attending a military parade in circumstances in which he hadn't shaven.
A: Mm‑hmm.
Q: Another one or two counts in which he hadn't made his bed.
A: Mm‑hmm.
Q: And another count in which he was identified as drinking alcohol one evening when his military privileges didn't permit him to do that.
A: Mm‑hmm.
Q: Is that your recollection?
A: [That's] my understanding of it.
Q: You say that these matters in combination are the factors that gave rise to what you referred to in your report at page 2 of his military career irreparably damaged. Is that a fair summary of your position?
A: I - I'm unsure which report you're referring to.
Q: This joint conclave report that we’ve just been speaking about.
A: For - page 2. It's‑‑
Q: Near the bottom, you talk about his Australian military career.
A: We’re back to question 1? I thought we’d finished.
Q: It's just something you said then took me back to that.
A: Right.
Q: You say that these military charges - firstly, that you agree with me that the charges related to one charge of attending a military parade whilst having not shaven, a second charge of not having made your bed, a possible third charge of not having made your bed, and a fourth charge of drinking one evening with other people when your military privileges didn't permit you to do that. Do you agree that they're matters with which this plaintiff was charged by the military?
A: I - I agree that’s what's recorded.
Q: You say that these charges are the main reason for what we refer - or what I’ll say is the collapse of the plaintiff’s military career. Is that what you say?
A: I say that the actual assault was the original reason why he has collapsed in his military career.
Q: But the manifestation of that, the actual assault wasn't anything the military knew about, was it?
A: I actually don't know.
Q: [From] what - my understanding of your previous answers was to the effect that these incidents were what led to the plaintiff resigning from the‑‑
A: No, the - the sexual assault led to the - him resigning because he was accused of being a homosexual.
Q: Is that something you say the plaintiff told you?

A: Yes.
Q: Have you dealt with that in any of your reports?
A. Not extensively.
Q: Have you dealt with it in any of your reports, anywhere at all?
A. Not extensively.
HIS HONOUR: Well, that was the question, Dr Baker. You should answer the question. Can you identify what‑‑
A: Not to not - unless I‑‑
HIS HONOUR: No, just a minute.
A: ‑‑actually go over my reports‑‑
HIS HONOUR: Just a minute.
A: ‑‑I won’t know it all.
HIS HONOUR: Okay. Well, just a minute, please. Please look at your reports and identify where in the reports you’ve said what you just said.
A: Okay. Probably it’s -
Q: Yes, your Honour, if I might say, I’m prepared to withdraw that question.
HIS HONOUR: No, hold on. Hold on. Hold on, Mr Hall, you’ve raised the issue. The doctor’s - you’ve put it to the doctor. He’s entitled to be given an opportunity to respond to it.
A: Yeah.
Q: Yes, all right, your Honour. I appreciate that.
HIS HONOUR: It’s an important issue and you've raised it, that if it's in his reports, he should identify it.
A: So, I think on page 4, I mentioned of the report dated, I think my first one, 19 July 2015:
‘PP reported that he had been raised in a strict Christian family and I think he was raised with an expectation that he would not engage in inappropriate sexual behaviour or abuse of alcohol or illicit substances. PP reported that his parents taught him a strict code of punishment where he believed he would go to hell if he was to transgress and [sin] against his God.
PP reported that prior to the sexual assault, he had never been sexually active with any person. PP reported that prior to the sexual assault, he had never used any illicit drugs and he had never smoked tobacco or drank alcohol. PP reported that Margaret was a practising Anglican school and scripture teacher in regional primary and high schools prior to the sexual assault suffered by PP.
PP stated that Margaret is still a practising Anglican chaplain and that he would submit that she would visit the sick and aged and dying within her community at the time of the assessment. In that context, he didn't tell her that he had been sexually assaulted in a homosexual way.’

HIS HONOUR: Yes, the question to you, Dr Baker, was - and your answer was that—
A: Yes.
HIS HONOUR: ‑‑as I understood your answer, he left the military academy because of his homosexuality. I think they - if I’ve‑‑
A: Yes, as in a testing, he has to keep his homosexuality quiet. And then, in the military, at the time, homosexuality was not - not legal. It’s now legal.
HIS HONOUR: That’s okay. But, what you're being asked to do, is indicate where in your report you mention‑‑
A: At this page.
HIS HONOUR: Okay. Where does it say he left - he left the‑‑
A: Inappropriate sexual behaviour.
HIS HONOUR: Because of inappropriate sexual behaviour. What line is that? I'm not following it, sorry.
A: Okay. So - well, paragraph 2 is where I actually talk about his - the homosexual experience he had as the first event.
HIS HONOUR: Yes, we understand that, but we're just trying to give you an opportunity to indicate and it's not a trick question, but that‑‑
A: Mm-hmm.
HIS HONOUR: ‑‑as Mr Hall has raised it, I just want to see where‑‑
A: So, if the Court - if - at this present time, I'm out of context. I'm not sure whether he’s - whether I'm being asked, does - that I talk about homosexuality as it is or did I talk about homosexuality in the military?
HIS HONOUR: I see. Well, Mr Hall, I’ll enable you to - leave you to clarify that then. If you wish to. If you don’t wish to, I don't have any further questions.
Q: Thank you, your Honour. Thank you for that consideration of your reports, Dr Baker. PP left the military because somebody accused him of being a homosexual. Is that what you say?
A: I’m saying that that is one factor of many.”

The plaintiff also identified the military’s treatment of homosexuality in the 1980s as a reason for leaving Duntroon.
It is a sad fact that society’s treatment of homosexuality in the 1980s caused many young people to suffer conflict and torment. It could hardly be in dispute that homosexuality in the military was not condoned, although there is no evidence in the contemporaneous records of a form that the plaintiff says he was forced to sign disclaiming any homosexuality experience.
The assaults on the plaintiff in 1985 were by a man, but if Dr Baker was intending to suggest that the plaintiff’s development of homosexuality (he actually identifies as bisexual) at that time was caused by the assaults and thus in some way should be viewed as the link between the assaults and being forced to leave the military and entitle him to compensation, I reject that opinion.
In my view, Dr Baker’s opinion as to the significance of being homosexual in the military in the 1980s does not assist the plaintiff. If it was intended to be an expert medical opinion it was not.
If it was intended be an expert medical opinion linking the plaintiff’s ultimate sexual preference to the assaults and psychiatric condition, I reject it.
Yet, according to both the plaintiff and Dr Baker, it was a significant factor in his decision to leave the military. Indeed, Dr Baker said it was why he left the military, that is, he was accused of being homosexual. The plaintiff may have felt that there was no place for him in the military in the 1980s, but that does not, of itself, establish a sufficient causal nexus between the assaults and his departure from the military.
The cross-examination of Dr Baker and Dr Baker’s approach to the cross-examination demonstrates the problems in adopting an opinion based on beneficial assumptions and a standardised approach based on literature and studies, when the contemporaneous documents show that at the very least, any problems which the plaintiff was suffering from at the time were multifactorial.
Having said that, there is no dispute that the plaintiff has suffered from a depressive disorder since 2012. He has been on the disability pension since 2013. Unfortunately, he has not undertaken any substantive treatment. The issue is what caused the development of the illness.
I accept Dr Baker’s opinion that the problems from which the plaintiff has been suffering have increased as he has aged. Mr Hall put to Dr Baker that the symptoms became more pronounced when he was in his late thirties. Dr Baker tended to agree with that on the basis that often people have an accumulation of pathologies over time.
He said in answer to a question from Mr Andrews that although the impairment condition occurs at the time of the assault, the ongoing accumulation of disabilities occurs over one’s lifespan. This is a well-accepted phenomenon particularly when the victims of sexual assault are forced to again confront the offender and relive the experience on repeat occasions.

Conclusion on the development of a psychiatric illness and departure from the military

For the reasons I have articulated, I do not accept that the plaintiff has been suffering from a psychological condition in the nature of depression since immediately after the assaults took place (which appears to be Dr Baker’s opinion). I similarly do not accept Dr Apler’s opinion that he developed a psychiatric illness 18 months after the assaults. This opinion is also not based on correct assumptions.
I accept the plaintiff’s evidence that he ruminated about the assaults and that he felt guilty and ashamed and that they caused him difficulties in his relationships. He had emotional difficulties.
However, this is a case in which the development of a psychological condition occurred many years after the events at a time when the plaintiff was compelled to relive and confront the events and his abuser and engage in protracted and contested criminal and civil proceedings. Those were direct consequences of the assaults. As revealed to the counsellor, the defendant’s continued denials and response to the plaintiff’s allegations of assault have tended to aggravate the plaintiff’s condition. I thus accept the causal relationship between the later development of depression and anxiety and the assaults.
Although I have not accepted the opinions of either Dr Baker or Dr Apler on when and why the plaintiff’s depression commenced and the other evidence is somewhat limited, my findings are supported by the evidence on accumulation of symptoms over time, the plaintiff’s evidence, the notes of the GP and the records of the counsellors.
I do not accept that the plaintiff’s military career came to an end consequent upon the sexual assaults. He had decided to leave the military within weeks of commencing. He was not suffering from any psychological illness related to the assaults and the issues relating to homosexuality and the military were according to both the plaintiff and Dr Baker of significance. Those issues were not causally related to the assaults.
He obtained full-time employment immediately thereafter for a period of 12 months before embarking upon overseas travel for a number of years.
The military records including psychological assessments point away from the suggestion that the plaintiff was struggling at Duntroon because of any psychological illness. Again, regard must be had to the well-known phenomenon of victims keeping these events secret but that does not mean that I should simply ignore direct and specific evidence such as his pattern of behaviour immediately after leaving the military and actual psychological assessments undertaken at the time in favour of a medico-legal psychiatric opinion plainly based on incorrect assumptions.
Causation is not established by establishing only that there is a possibility that the events would not have happened but for the tortfeasor’s conduct.^[7]
7. St George Club Ltd v Hines (1961) 35 ALJR 106; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720; Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190.
In my view, the plaintiff has not established that the effect of the sexual assaults was that he was unable to complete his course at Duntroon or stay in the military at all and thus that he was unable to become a commercial pilot.
In reality, the plaintiff chose other options (immediately after leaving the military) and has made other career choices.
These conclusions rather render much of the plaintiff’s expert accounting report irrelevant.
I understand the plaintiff’s alternative claim to be that I should assess past and future economic loss on the basis of the difference between average weekly earnings and what he has and might earn for the whole of his working life.
Again, that seems a rather ambitious claim. It would require me to find that when he was doing less remunerative jobs that he really would have been working in some other career if not for the effects of the sexual assaults. What other career that might have been other than the military has not been identified. I will consider this issue further when assessing economic loss.

Assessment – pain and suffering

I accept that the consequences of the sexual assaults have been significant for the plaintiff, although the feelings that he experienced and the ruminations that he underwent did not turn into a form of psychiatric illness until many years after the events.
Having said that, this is not a case in which the conduct of the defendant has caused the plaintiff to sink to alcoholism, hard drug use or a general inability to function in society. He feels that he has been a disappointment to his family but the reasons for that feeling are multifactorial and, despite his feelings, he has done a lot in his life so far.
I accept the submission made on behalf of the defendant that the narrative of the plaintiff’s life since the assault has, at least to a certain extent, encompassed many activities and interests which do not necessarily reflect a significant level of disability. He travelled, moved around and tried various jobs before obtaining his degree in media.
On his evidence his sexuality became defined as he progressed through his twenties.
He now suffers from a psychiatric condition but it must be borne in mind that he has not had any real treatment at all for that condition and has declined antidepressant medication.
Having said all of that, the plaintiff has been forced to live with the guilt and shame which was particularly significant for him bearing in mind his family situation. He has had difficulties forming relationships. There has been an instability in his life which has affected him in many ways.
I assess general damages in the sum of $200,000.

Past loss of income

The plaintiff’s claim for economic loss can be divided into three periods being the period until 2012, the period since 2012 and the future.
As I have not accepted that the plaintiff’s departure from the military was caused by the assaults, damages for economic loss could only be assessed on the alternative basis put by the plaintiff being a comparison of average weekly earnings with his actual earnings (or some other basis).
To the extent that it might be said that he should be compensated on the basis that he lost the chance of pursuing a career in the military and lost the chance of being a pilot (presumably on the basis that but for the consequences of the assaults he might still have pursued a career in the military) I do not accept that, having left Duntroon for reasons not causally related to the assaults, there was any prospect of returning to the military.
The plaintiff says (or rather his accountant estimates) that he has earned a total of $437,000 in his life. He also says that, if he had earned average weekly earnings since the age of 18, he would have earned $1.5 million. Plainly there are difficulties in accepting either figure.
In my view, there are difficulties in finding a substantial loss for much of the period prior to 2012. For example:

the basis on which he might have been earning anything like average weekly earnings as a teenager or in his twenties in unclear;

he could not be assessed as having suffered any loss consequent upon the assaults in the year that he worked full-time with Imagineering after leaving the military;

he could not be assessed as having suffered any loss consequent upon the assaults in the years that he was travelling overseas performing various jobs whilst he travelled;

when he came back he appears to have performed various jobs up to, say, 1996, but it is not clear that there was any lengthy period of unemployment and there is no evidence that, but for the effects of the assaults, he would have been working in some other particularly more remunerative job;

he then obtained employment at the Bureau of Statistics which I understand was full-time for a year;

it does not seem to me that I can find loss during the period that he decided to undertake his scuba instructor course then work in Cairns as a scuba instructor; and

he undertook a six month full-time course in 2002. That was his choice. He subsequently undertook a University course in media studies for four years up to 2009. He appears to have worked at least part time whilst doing so.

Further, I do not accept that assessing damages for such a significant period of the past simply involves accepting what the plaintiff says he earned, either himself or through an expert accountant and then subtracting that sum from some figure that the plaintiff says he would have hoped to earn.
To take that approach I would need to be satisfied that every time the plaintiff changed jobs it was because of the effects of the assault or that every time he had a period of unemployment it was because of the effects of the assault.
Assessing damages is not such a simple task.
In my view, the approach to the assessment of loss up to 2013 should be to allow the plaintiff a buffer on account of loss of earning capacity. The awarding of a buffer is permissible in circumstances in which the task of assessing loss of earning capacity cannot be undertaken with reference to precise weekly amounts due to the uncertainty of the claimant’s earnings and the number of variable factors which would render a more precise assessment merely artificial and speculative.
I am unable to conclude that every change of job was connected with the effects of the sexual assault. I am unable to conclude that having obtained a certificate in IT or having obtained his scuba instructor’s certificate, he was precluded from pursuing a career in those fields because of the effects of the assaults. I am unable to conclude that he became a scuba instructor or undertook a media degree rather than working in some higher paying activity because of the assaults.
Indeed, having regard to the evidence as to what the plaintiff was doing in his twenties, it is difficult to ascribe too much by way of loss to that period. He appears to have had various jobs, in addition to a period of travelling. The basis on which the plaintiff would have been necessarily on higher sums is not clear.
Having said that, I accept the plaintiff’s narrative that he has had difficulty in sticking at a job and that the instability in his life and difficulty in maintaining relationships has resulted from his emotional problems consequent on the assaults.
I thus assess his loss for the period up to 2013 on the basis of a buffer in the sum of $150,000.
This reflects the likelihood that he might have had a greater stability in his employment and a greater capacity to maintain employment for a lengthy period, if not for his overarching feelings consequent upon the sexual assaults. It reflects the loss of a chance analysis set out in Malec v Hutton. Whilst Malec v Hutton was more concerned with assessing damages for potential events, the same approach can be taken with respect to assessing loss in respect of events which have happened in the past or might have happened over a long period.
As the Court emphasised:^[8]

“The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.”
8. (1990) 169 CLR 638 at 643; [1990] HCA 20 (Deane, Gaudron and McHugh JJ).

In reality the plaintiff’s claim for past loss can only be assessed on the basis that he lost the chance of earning more than he has. Further, the amount put forward by the plaintiff as his actual earnings is really just an assumption made by his accountant. I do not accept that loss could be assessed on the basis of some weekly sum having regard to average weekly earnings and assumptions as to what he was earning.
This sum is also heavily weighted towards the latter period. Much of the amount would be reflective of the increasing difficulties or accumulation of symptoms as he grew older.
More is known about the plaintiff’s loss from approximately 2013. That is because I am in receipt of medical certificates from his general practitioner and he has been on the disability pension. I have reviewed the reports of the counsellors.
The defendant does not dispute that the plaintiff has been suffering from a depressive disorder. I accept the relationship between his current psychological state and his inability to work having regard to the accumulation of symptoms.
Although the plaintiff’s current state would seem to be based on a number of factors it was not suggested that there is no relationship between his current state and the assaults. I would not exclude the casual relationship because there are other factors which have happened along the way which have also impacted on the plaintiff. The origin of his current state was not the subject of cross-examination. I have already referred to the accumulation of symptoms and the increase in the effect which can sometimes occur as a victim of sexual assault gets older.
I am satisfied that the plaintiff finds himself on the disability pension as a result of the psychiatric conditions which he has developed, consequent upon the assaults. His earning capacity has thus been diminished as a result of the defendant’s tortious conduct.

It was incumbent on the defendant to establish that his earning capacity for the last ten years or so would have been diminished by other factors, such as difficulties with his partner and other childhood family issues.^[9] The defendant has not done so.
9. Watts v Rake (1960) 108 CLR 158; [1960] HCA 58.
Nor did the defendant challenge the plaintiff on how much work he might have performed during the last ten years. As he has been generally off work and unfit for work, he is entitled to his loss for the period since 2012.
I would assess his loss based on average weekly earnings. However there is uncertainty as to how much he has been earning. For reasons which were unexplored, the plaintiff’s expert accountant was not provided with the plaintiff’s tax returns since 2009 even though the plaintiff provided tax returns for a number of years before that. The accountant merely estimates what he might have earned based on the asserted earnings in the ten years prior thereto. This means that the plaintiff must be acknowledging that he has been earning something. This would be consistent with what he told Dr Apler.
I am assessing the plaintiff’s loss of earning capacity in circumstances in which there has been no exploration of what he has been earning. Having said that, he was not challenged on his evidence.
In these circumstances. I will adopt the plaintiff’s estimate. By my calculations and having regard to the average weekly earnings (adopting an average as the plaintiff submits) as adopted by the plaintiff, the plaintiff’s loss thus would have been ($1,100 for 8 years = $457,000 less approximately $80,000 actually earned): $377,000.

Future loss of earning capacity

Like past loss, the plaintiff must establish what his earning capacity would have been but for the defendant’s conduct and to what extent that capacity has been diminished as a result of the assaults.
In terms of his capacity, as his claim based on him becoming a pilot has not been accepted the plaintiff could only succeed on his alternative claim being that damages should be assessed on the basis of loss at the rate of average weekly earnings for the next 15 years.
I accept that it is appropriate to assess his capacity on the basis of average weekly earnings. However I do not accept that he is entitled to the full loss of average weekly earnings over the next 15 years or even anything like that.
At least in my view, two things are clear being:

his mental health has been significantly impacted by both the criminal proceedings and these proceedings. It is only necessary to consider what he said to the counsellor during the period 2019-2020 to gain support for that finding; and

the treatment he has received has been minimal. He has not taken psychiatric medication consistently and not received any psychiatric assistance. The prognosis may be poor without treatment but when a person maintains a lengthy period of depression and anxiety without any treatment at all during that period but claims the cost of treatment on an ongoing basis, it is difficult to form a view as to his prognosis and for how long his capacity for work might be diminished.

Indeed, Dr Apler says that his prognosis depends on his response to treatment. Dr Baker says that he will remain unfit for work but neither doctor was presented with the type of complaint or history that the plaintiff provided to his counsellor in 2019-2020. I do not accept Dr Baker’s pessimistic prognosis.
The assessment of future loss of earning capacity is thus necessarily imprecise and difficult. The plaintiff must establish his loss.
On my findings, the accumulation of symptoms over time culminating with the exacerbation arising from the process of the assaults being revealed and the plaintiff’s involvement in two lengthy court cases have resulted in the development of a depressive disorder. However, how long that disorder might last is uncertain, particularly as he has not had any treatment and the most recent reports of the counsellor point to the conclusion of these proceedings as being an event which might have a significant impact on his mental health.
There may be two ways of undertaking such an assessment. Either I could award him a buffer or I could assess his loss based on the average weekly earnings but discounted on account of contingencies. In my view, any award for the future must be heavily discounted. This is particularly so in circumstances in which:

I do not accept Dr Baker’s prognosis or opinion on work capacity;

there is really no other evidence supporting the proposition that he will remain unfit for work on a long term basis;

the notes of the counsellor tend to suggest a brighter prognosis for the plaintiff;

he has not had psychiatric treatment and Dr Apler suggests that his prognosis must depend on his response to that treatment;

he is qualified in a number of areas; and

I am somewhat uncertain as to how much he has been working. The tax returns for the past ten years are not in evidence. He has regularly changed jobs in the past (and there is insufficient evidence to conclude that every change in job was in some way related to his mental health). The idea that he would be working for the next 15 years non-stop is difficult to accept.

I do not consider I should merely award the plaintiff average weekly earnings for the next 15 years (which the plaintiff says results in an allowance of $698,000 with the usual 15% discount on account of vicissitudes) and then discount it by some figure.
The better approach is to accept that the plaintiff will have some treatment and may take some time to return to the workforce and that there may be some fluctuation in his symptoms from time to time. A buffer is appropriate when it is clear that the plaintiff is suffering and will suffer loss into the future but the evidence does not permit precise calculations or even estimates as to for how long and at what level such losses might be sustained.
I allow a buffer of $200,000. This allows for a lengthy period of recovery/treatment or diminution of symptoms with some instability in his working life on an ongoing basis.

Out–of–pocket expenses

The plaintiff makes no claim for past out-of-pocket expenses. This is because he is unable to identify any treatment at all referable to the consequences of the assaults. The counselling that he had in 2019 and 2020 suggests his problems are multifactorial.
He claims in excess of $200,000 for future treatment. I do not accept that the plaintiff will be undertaking inpatient treatment as recommended by Dr Baker. I accept, however, that he needs psychiatric treatment, being regular visits to a psychiatrist. I do not accept that he will be doing that for the rest of his life. The period is likely to be limited. He claims the cost of extensive medication for the rest of his life despite not taking any for the past 9 years.
I allow the sum of $20,000 on account of future treatment.

Interest

The plaintiff claims interest. The power to award interest on damages up to judgment is governed by s 100 of the Civil Procedure Act 2005 (NSW). Interest may be awarded from the time the cause of action arose until the date of the judgment.
The plaintiff is not entitled to interest as of right.^[10] An award of interest is in the discretion of the Court. The purpose of awarding interest is “to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period.”^[11]
10. State of New South Wales v Loh Min Choo [2012] NSWCA 275 at [54] (per Macfarlan JA, McColl and Campbell JJA agreeing).
11. M.B.P (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663; [1991] HCA 3 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
Traditionally, in a claim for damages in respect of personal injury, interest is awarded in respect of past general damages and loss of income.
For the purposes of assessing interest on past general damages, it is necessary to notionally attribute some portion of the allowance for general damages to the past. I attribute $130,000 to the past and $70,000 to the future.
In Cullen v Trappell^[12] Gibbs J explained that the plaintiff would be over compensated should interest be awarded in full, from the date of the event to the date of the judgment. His Honour referred to and approved the approach adopted by Lord Diplock in Cookson v Knowles^[13] which was to either halve the period for which interest is given at current rates or to give interest for the whole period at half the current rates.
12. (1980) 146 CLR 1 at 19; [1980] HCA 10.
13. [1979] AC 556.
Although there has been some differing views expressed as to the way in which the rate should be calculated (see, for example, Gogic at 664). the approach of halving the rate or halving the period to reflect the fact that the actual loss occurred at differing times throughout the whole period is generally adopted in NSW.
Although the awarding of pre-judgment interest is entirely discretionary, the Court must exercise the discretion in accordance with appropriate legal principle, that is, if interest is compensatory and the principle is to put the plaintiff back in the position that he would have been, then a plaintiff who has not had the use of his money because of the conduct of a defendant, would ordinarily be entitled to interest (absent any statutory restriction as is now found in s 18 CLA).
In a case such as this, interest will be significant and may inflate the judgment but the legislature has allowed these types of claims to be pursued many years after the event and interest is intended to be compensatory. It should be awarded provided that it reflects when the losses were actually sustained.
In terms of interest on past general damages the plaintiff would be over compensated if I simply allowed interest for the whole of the period, particularly in circumstances in which this is a case in which the development of symptoms became accumulative starting with emotional problems and increasing in later years.
I will allow the current rate but rather than simply halving the period, I will divide the period by one third (11 years).
I allow interest averaged at 5% on past general damages with the period being reduced to 11 years. That would amount to $71,500.
In terms of past economic loss, it would be unfair to simply apply interest to the whole amount at half the rate as if the plaintiff started to suffer a loss the moment the assaults occurred. That is not what happened here. Indeed most of the loss has happened in the later years when the rates have been lower.
I will apply half the rate (averaged at 5%=2.5%) for the period of 11 years = $144,925.

Aggravated damages

I accept that the plaintiff is entitled to aggravated damages. The conduct of the defendant was such that over and above the psychiatric injury which he developed later in life, the plaintiff has experienced distress, hurt feelings and shame, such that an award of aggravated damages is justified. I allow the sum of $35,000 as claimed by the plaintiff.

Damages

I assess damages as follows:

Head of damages

Amount

General damages

$200,000

Interest on past general damages

$71,500

Past economic loss

$527,000

Interest on past economic loss

$144,925

Future economic loss

$200,000

Loss of superannuation (averaged at 10% for the past and then 11% for the future)

$74,700

Future medical expenses

$20,000

Aggravated damages

$35,000

Total

$1,273,125

Use of a pseudonym

The plaintiff does not seek a non-publication order but seeks the use of a pseudonym pursuant to ss 8(1)(a) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW).
He seeks the use of a pseudonym on the grounds that is necessary to prevent prejudice to the proper administration of justice and that the public interest in the use of a pseudonym significantly outweighs the interest in open justice.
In particular he refers to the decision of Adamson J in BDN v McCoy.^[14] However, that case was somewhat different. Other than making a short submission and referring to the case the plaintiff did not adduce any evidence in support of the application. This is the final judgment in this matter. Plainly there has been no earlier application for use of a pseudonym. I am not satisfied on the information before me that the use of a pseudonym in this matter is either necessary to prevent prejudice to the proper administration of justice or that the public interest in open justice, which underpins our system of justice, is outweighed by the public interest in the plaintiff being identified by a pseudonym.
14. [2019] NSWSC 1723.

Orders

I enter a judgment for the plaintiff in the sum of $1,273,125.
I order the defendant to pay the plaintiff’s costs.

**********

Endnotes

Amendments

20 December 2022 - Anonymisation

Decision last updated: 20 December 2022

Medium Neutral Citation:	PP v DD (No 2) [2021] NSWSC 1312
Hearing dates:	12, 13 and 14 July 2021
Date of orders:	15 October 2021
Decision date:	15 October 2021
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	(1) Judgment for the plaintiff in the sum of $1,273,125. (2) I order the defendant to pay the plaintiff’s costs.
Catchwords:	TORTS – General principles - Assessing damages for sexual assault – Where contemporaneous records do not support the conclusions of medico-legal experts – Inherent difficulty in quantifying loss in cases involving sexual assault TORTS – Trespass to the person – Assault and battery – Sexual assault - Where defendant has been convicted of criminal offences against the plaintiff
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	BDN v McCoy [2019] NSWSC 1723 Cookson v Knowles [1979] AC 556 Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 Cullen v Trappell (1980) 146 CLR 1; [1980] HCA 10 Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190 Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 M.B.P (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3 PP v DD [2021] NSWSC 1157 New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 State of New South Wales v Loh Min Choo [2012] NSWCA 275 St George Club Ltd v Hines (1961) 35 ALJR 106 Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 Watts v Rake (1960) 108 CLR 158; [1960] HCA 58
Category:	Principal judgment
Parties:	PP (Plaintiff) DD (Defendant)
Representation:	Counsel: K W Andrews with R Brown (Plaintiff) Solicitors: Carroll & O’Dea Lawyers (Plaintiff) Hall Partners (Defendant)
File Number(s):	2018/204001
Publication restriction:	Nil

Head of damages	Amount
General damages	$200,000
Interest on past general damages	$71,500
Past economic loss	$527,000
Interest on past economic loss	$144,925
Future economic loss	$200,000
Loss of superannuation (averaged at 10% for the past and then 11% for the future)	$74,700
Future medical expenses	$20,000
Aggravated damages	$35,000
Total	$1,273,125