Shuttleworth v Morris

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S CI 2017 02834

NEIL SHUTTLEWORTH	Plaintiff
v
ROBERT LEONARD MORRIS	First Defendant
and
STATE OF VICTORIA	Second Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2020
DATE OF JUDGMENT:	1 April 2020
CASE MAY BE CITED AS:	Shuttleworth v Morris & Anor
MEDIUM NEUTRAL CITATION:	[2020] VSC 143

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PERSONAL INJURY – School authority seeking contribution from employee teacher for damages paid to a student as a result of sexual abuse – Fair and just apportionment of settlement figure between first and second defendant – Comparative examination of tortfeasors – Whether second defendant entitled to an indemnity from the first defendant for its liability to the plaintiff – Whether the settlement sum is excessive – No part of settlement sum found to have been excessive - Wrongs Act1958 (Vic) ss 23B, 24(2B) – JK v State of NSW [2014] NSWSC 1084 - Podresbersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 – Prince Alfred Collegev ADC (2016) 335 ALR 1 – Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 (H.L (E)) 573.

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APPEARANCES:	Counsel	Solicitors
For the First Defendant	Self-represented
For the Second Defendant	Ms R Kaye	Thomson Geer Lawyers

HER HONOUR:

Mr Shuttleworth claimed damages from Mr Morris and from the State of Victoria (relevantly the Department of Education). He suffered injury as a result of abuse inflicted on him when he was an eight year old boy. At the time he was a year 3 student at Cambarville Primary School (‘the school’) where Mr Morris was employed by the second defendant as a teacher.
Mr Shuttleworth alleged that Mr Morris frequently sexually abused him at the school during 1967. He alleged that Mr Morris acted both in breach of his own duty of care as a teacher to students and by the intentional tort of battery.
The second defendant, (who I will refer to as the ‘school authority’), was alleged to have direct liability to Mr Shuttleworth by breach of its duty of care as school authority to him as a student. It was also alleged that it was vicariously liable for the acts of its employee, Mr Morris.
Ultimately the school authority resolved proceedings with the plaintiff by serving an Offer of Compromise in the sum of $500,000 plus costs which was accepted. Accordingly judgment was entered in favour of Mr Shuttleworth against the school authority for this sum plus costs and disbursements which were agreed at $63,000 (collectively ‘the settlement figure’).
When proceedings were commenced, the school authority filed a defence and a Notice claiming Contribution from Mr Morris. The contribution proceeding remained on foot after settlement and the hearing before me dealt with the contribution claim. In the principal damages proceeding Mr Shuttleworth had entered interlocutory judgment against Mr Morris in default of an appearance by him. Similarly in the contribution proceeding the school authority obtained interlocutory judgment in default of an appearance pursuant to Rule 11.15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
By the Notice of Contribution the school authority says Mr Morris’ actions were a breach of his contract of employment. It seeks an indemnity from Mr Morris or damages from him for its liability to the plaintiff. Alternatively it seeks such contribution as is just and equitable pursuant to s 24(2) of the Wrongs Act 1958 (Vic) (‘the Wrongs Act’). It submits that the just and equitable contribution is 100% of the settlement figure, in effect a contribution amounting to a complete indemnity.
The determination of the contribution proceeding between the defendants requires consideration of the following issues:
(a)What contribution is appropriate under s 23B of the Wrongs Act? In other words, what is a fair and just apportionment considering a comparison of culpability and the relative importance of the acts of each defendant to the injury, loss and damage suffered by the plaintiff?
(b)Is the school authority entitled to an indemnity from Mr Morris?
(c)Is the settlement figure paid by the school authority excessive so that any part of it is to be disregarded in accordance with s 24(2B) of the Wrongs Act?
Evidentiary basis for determining contribution
As to Mr Shuttleworth’s statement of claim, the school authority admitted that Mr Morris was an employee, placed in his first teaching post at Bahgallah primary school in 1966. There, in western Victoria, Mr Morris was a ‘temporary head teacher’ in a single teacher school. The school authority further admits that it approved transfers of teachers between state schools and that Mr Morris commenced as ‘permanent head teacher’ in 1967 at the school at Cambarville, near Marysville, also a single teacher school.
Mr Shuttleworth’s claim alleged that Mr Morris sexually abused multiple young male students at Bahgallah in 1966 and that his departure from that school was ‘sudden and without explanation’. The events at Bahgallah in 1966 do not form any part of the pleadings in the school authority’s Notice of Contribution but they are relevant when considering the school authority’s culpability.
The school authority’s defence to Mr Shuttleworth’s statement of claim did not admit either the allegations of abuse at Bahgallah in 1966 or the abuse of Mr Shuttleworth in 1967. In each case, the defence outlined that ‘none of its employees, servants or agents witnessed the First Defendant sexually abuse students’[1] at the relevant school. In each case it said that it ‘does not have any contemporaneous record, complaint, note or otherwise which substantiates the allegations made’[2].
[1]Defence dated 27 December 2017 (‘Defence’) [5(b)] and [10(b)].
[2]Defence (n 1) [5(c)] and [10(c)].
The school authority also denied that Mr Morris’ departure from Bahgallah was sudden and without explanation.
Events at Cambarville
Given the entry of interlocutory judgments against Mr Morris, some of the evidentiary difficulties in proving the abuse by Mr Morris of Mr Shuttleworth are ameliorated. It is not necessary to rely on the out of court statements made by Mr Shuttleworth and his mother in respect of which hearsay notices had been served pursuant to s 67 of the Evidence Act 2008 (Vic). Nor is it necessary to consider the notices seeking to rely on tendency and coincidence evidence arising from other sexual assaults of school children, occurring later in time, in respect of which Mr Morris has pleaded guilty and been sentenced.
Mr Morris by reason of having interlocutory judgments entered against him by Mr Shuttleworth and the school authority is taken to have admitted the pleaded allegations relevant to his actions.
Events at Bahgallah
None of the evidence outlined above dealt with abuse alleged at Bahgallah in 1966. Mr Morris is taken to have admitted its occurrence but there is no evidence otherwise. In particular, there is no evidence before me as to the circumstances of his departure from the school or the reasons for it.
In support of a submission as to matters relevant to an assessment of the school authority’s contribution, it noted that no statements were served by the plaintiff of anyone alleging abuse at Bahgallah despite the plaintiff serving statements of Mr Shuttleworth and his mother. As there is no obligation on the plaintiff to serve witness statements I do not accept that their absence can have any bearing on the potential liability of the school authority. The absence of statements is no basis for drawing any inference about the strength or weakness of the plaintiff’s case against the school authority for the purpose of comparing its relative culpability to the plaintiff. The statement of claim on behalf of Mr Shuttleworth is subject to the overarching obligations of the Civil Procedure Act2010 (Vic) including s 18 requiring a proper basis for the factual matters pleaded there. No more than this can be said.
Whatever information formed the factual basis for the pleading it was most likely capable of being uncovered by investigation by either party. Once the statement of claim was served, preparation would ordinarily encompass both a search for relevant documentation and speaking to those potential witnesses that could be identified. The school authority did not put into evidence any of the contemporaneous documentation that did exist regarding Mr Morris or Mr Bilston, relevant to Bahgallah primary school in 1966. In particular, the documentation transferring Mr Morris from Bahgallah and from Cambarville was relevant. Nor was there any record produced or evidence of a recent independent investigation of the allegations by identifying and speaking with persons who had some involvement with the school at Bahgallah in 1966. The absence of documents necessarily means that any evidence as to events at Bahgallah would have been from recollections from witnesses.
The question of whether some investigation should have been undertaken at the time into the timing and circumstances of departure from Bahgallah is not answered by the absence of any contemporaneous documentary evidence. The statement of Mr Shuttleworth’s mother was tendered by the school authority.[3] In her statement she says that she became aware of the abuse when a neighbouring child, also a student at the school reported to her that Mr Morris had kept her son in after class and that the girl had looked through the classroom window to see what was happening. As a result of what the child reported, Mr Shuttleworth’s mother confronted Mr Morris. The next day she reported Mr Morris to the teacher in charge at the nearby Marysville school. She said that she was advised to be very sure of her facts and, on leaving the Marysville school after making the report, she did not know if anything would be done about Mr Morris. She records that he (Mr Morris) left town approximately a few weeks after this and was replaced by another teacher without explanation. This clearly demonstrates that the absence of any contemporaneous documents has little bearing on either the need to investigate or the state of knowledge of the school authority.
[3]Further Affidavit of Cameron Richard Roberts filed 5 December 2019 (‘Further Roberts Affidavit’), Exhibit CRR6 (‘Statement of Mrs Shuttleworth’).
Mr Morris pleaded guilty to sexual assaults of six children while he was their teacher between 1971 and 1977. As appears from the Court of Appeal reasons in his appeal against sentence, ‘[a]ll of the victims were pupils at schools where he was teaching.’[4] The reasons don’t reveal how many schools were involved. In the matter of Hand v Morris,[5] referred to in submissions on another issue, Mr Morris was a primary school teacher in 1974 when he sexually abused Mr Hand. The continued teaching career of Mr Morris in the face of Mrs Shuttleworth’s complaint as outlined in her statement[6] also demonstrates the gulf that might exist between contemporaneous documents and the decisions that were taken.
[4]Morris v The Queen [2016] VSCA 331 (‘Court of Appeal Reasons’).
[5][2017] VSC 437.
[6]Statement of Mrs Shuttleworth (n 3).
Whilst the recollections of potential witnesses and so the evidence as to departure from Bahgallah cannot be known, I will assess the school authority’s entitlement to contribution from Mr Morris on the basis that there was an arguable case that its liability to the plaintiff included a breach arising out of events at Bahgallah.
Recovery of Contribution by the school authority
Section 23B of the Wrongs Act provides an entitlement to seek contribution in the following circumstances:
(1)a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with the first-mentioned person or otherwise).
The quantum of contribution is governed by s 24 which provides:
(2)Subject to subsections (2A) and (2B), in any proceedings for contribution under section 23B the amount of the contribution recoverable from any person shall be such as may be found by the jury or by the court if the trial is without a jury to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the jury or the court if the trial is without a jury shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.
There is no issue in this case that the damage suffered by Mr Shuttleworth is the same damage for which both defendants are said to be liable. Podresbersek v Australian Iron & Steel Pty Ltd outlined the approach in determining apportionment between negligent parties. It held that an instruction to a jury that they simply reduce the plaintiff’s damages to such an extent as the jury considered to be just and equitable having regard to the plaintiff’s responsibility for the damage was inadequate. The reason for the inadequacy was described this way:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd; Smith v McIntyre and Broadhurst v Millman and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance. [7] (citations omitted)
[7](1985) 59 ALR 529, 532-3.
Arriving at a contribution recoverable by one tortfeasor from another requires application of these same considerations. A just and equitable contribution requires a consideration of culpability - that is the degree of departure by each defendant from the applicable standard of care - and the relative importance of the acts or omissions of each in causing the damage. At the heart of the exercise is the requirement that the conduct of the tortfeasors be subjected to a comparative examination.
A teacher owes a personal duty of care to their students. There is no doubt that the acts of Mr Morris are a gross departure from the standard of care expected of him. The deliberate nature of the acts committed by him is central to the psychiatric injury that continues to afflict Mr Shuttleworth since that time.
The school authority also owes a similar duty of care to its students. The duty of the school authority is owed independently of any duty owed by individual teaching staff. The duty of a school authority to ensure that reasonable care is taken of students is non delegable. In Commonwealth v Introvigne Mason J said:
The liability of a school authority in negligence for injury suffered by a pupil attending the school is not purely a vicarious liability. A school authority owes to its pupils a duty to ensure that reasonable care is taken of them whilst they are on the school premises during school hours when the school is open for attendance.[8]
And later:
It was, as I see it, a duty directly owed by the Commonwealth for breach of which it is liable. It was not a case of vicarious liability for the omissions of the acting principal and his staff, though had it been necessary to do so, the Commonwealth might have been found liable on this score.[9]
[8](1982) 41 ALR 577, 586.
[9]Ibid 588.
This non delegable duty does not extend to intentional criminal conduct by a teacher against a pupil.[10]
[10]New South Wales v Lepore (2003) 212 CLR 511.
The breaches alleged directly against the school authority rested largely in the acts or omissions of two (or possibly three) other identified department employees. First, a breach of duty arose from acts or omissions of the District Inspector, Mr Bilston. One inspection was admitted by the school authority during the 1966 school year, although the plaintiff’s statement of claim describes the inspector visiting the school ‘at least twice’ during that period. Mr Bilston’s failure, or that of other unidentified employees, is described as a failure to investigate the departure of Mr Morris, which investigation it was said would have detected abuse of children at Bahgallah.
The second employee is the Principal at Marysville and/or the Marysville Inspector who are said to be responsible for supervision and monitoring of Mr Morris during 1967. It is not clear whether the Principal and relevant Inspector are one and the same person. The Marysville Principal and Inspector are alleged to have failed to supervise and monitor Mr Morris including by not detecting the teacher’s practice of having male students sit on his knee for long periods or to detect the sexual assaults in the classroom during 1967. They are also alleged to have failed to report the abuse to more senior departmental employees or alternatively, if they did report, then more senior employees failed to act on it appropriately.
The school authority submits that actions of the actual perpetrator of abuse are deliberate and heinous conduct against a vulnerable school child in his care, and his responsibility significantly exceeds its culpability. I accept this. However, it is the vulnerability of the child who is placed in the care of the school authority that is itself the basis for the separate duty owed by it. Whether or not an adequate system of supervision and monitoring generally in 1967 by the Marysville Principal and Inspector might have detected such covert behaviour at the school points to a systemic failing rather than anything referrable to the particular circumstances surrounding Mr Morris’ employment. The culpability arising from such a failing must bear in mind the intentional nature and circumstances of the abusive acts by the perpetrator. I also take account of the fact that Mr Morris, on occasions when confronted with accusations, had denied them.[11] I do not draw any inference adverse to the school authority regarding the absence of evidence of the Marysville Principal or Inspector given that the relevant persons are deceased.[12]
[11]Statement of Mrs Shuttleworth (n 3) and Court of Appeal Reasons (n 4) [28] - [29] noting Mr Morris initially made no admissions when arrested and interviewed but ultimately pleaded guilty.
[12]Further Roberts Affidavit (n 3).
The other allegation, that the school authority ought to have investigated the sudden departure from Bahgallah and by doing so discovered complaints of abuse, if established, indicates a departure from the reasonable standard of care that is specific to the placement of Mr Morris. I do not accept the school authority’s submission that the fact and timing of Mr Morris’ departure from Bahgallah did not reasonably give rise to a suspicion which would have warranted the need for further investigation. This submission rested largely on the absence of documentary evidence. I have outlined why I do not accept that the absence of documents demonstrates an absence of breach.
It is perhaps misleading to describe the obligation as one to ‘investigate’ Mr Morris’ reasons for leaving. As the school authority authorised transfers there was no doubt some process of inquiry or at least discussion recorded of decisions to transfer between schools. This would apply whether transfers were scheduled or unexpected and whether they were sought by the individual or imposed by wider staffing needs. It is perhaps an element or incident of the obligation to supervise staff. In comparing culpability, I place some significant weight on the degree of departure from the standard of care that would exist if a transfer was made without due regard for any specific risk to students at the future school that might be posed by past conduct of the particular teacher being transferred. Any such specific risk would also inform particular arrangements that might be necessary for supervision beyond that required to discharge a general duty to supervise. For the reasons set out above at [27] I accept the plaintiff’s claim was arguable that events in 1966, if investigated at the time, might have brought to light complaint of abuse at Bahgallah. I cannot assess the strength or even prospect of success of the argument. All that can be said is that such an argument, if made out, would demonstrate a failure by the school authority that was specific to its continued engagement of Mr Morris as a teacher and not simply a more general failure to adequately supervise and monitor teachers.

I was referred to the case of JK v State of NSW[13] as an illustration of apportionment of contribution. In that case a teacher sexually assaulted a 13 year old student. In 2003 the teacher had been informed of a report that the student ‘had a crush on him’ and was ordered not to have any contact. The teacher faced 15 criminal charges in relation to the assaults which occurred over a two year period from 2004. All bar one criminal offence occurred off school premises and out of school hours. The state paid damages in settlement with JK and sought 100% contribution from the teacher. In that case a just and equitable apportionment under the equivalent provision in New South Wales held that the teacher contribute 90% of the settlement sum. This was arrived at expressing the view that ‘nearly all of the fault can be attributed to the actions of the teacher’, but allowing for the arguments that could be made; that the school authority, aware of ‘the crush’ should more closely monitor interaction during school hours or bear some responsibility for the assault that occurred on school premises. There was no allegation that the school authority knew or ought to have known of any of the assaults away from the school premises.
[13][2014] NSWSC 1084.
Section 23 of the Wrongs Act does allow a contribution that amounts to a complete indemnity. This is what the school seeks. Contribution amounting to a complete indemnity might be appropriate in circumstances where one joint tortfeasor has a liability without blame – such as a purely vicarious liability by reason of the relationship between tortfeasors – for example members of a partnership sued for the action of one partner. However where there is a direct liability, the comparative exercise required for apportionment will rarely lead to the result that a just and fair contribution amounts to a complete indemnity.
In the circumstances I would apportion 85% to Mr Morris and 15% to the school authority.
Indemnity in favour of the School Authority
The contribution proceedings pleaded a breach of the employment agreement. The agreement was said to include a term that Mr Morris would act lawfully and that the sexual abuse, if established, meant that Mr Morris acted outside the scope of his employment and in breach of this term in the agreement. As a result of this the school authority seeks an indemnity for its liability to the plaintiff for damages. Because the contribution under the Wrongs Act does not amount to a complete indemnity, it is necessary to consider the alternative relief of indemnity.
An employer may seek indemnity from an employee pursuant to a breach of employment contract. In Lister v Romford Ice Co the House of Lords said:
I think it right to say that I concur in what I understand to be the unanimous opinion of your Lordships that the servant owes a contractual duty of care to his master, and that the breach of that duty founds an action for damages for breach of contract, and that this (apart from any defence) is such a case. It is trite law that a single act of negligence may give rise to a claim either in tort or for breach of a term express or implied in a contract. Of this the negligence of a servant in performance of his duty is a clear example.[14]
[14]Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 (H.L (E)) 573.
This rule has been abrogated by statute in some state jurisdictions (at least in respect of negligent employees),[15] although not Victoria. However the availability of an indemnity under a contract is for a blameless person held liable for another’s conduct. It is available to an employer for its vicarious liability to pay damages to a third party arising from its employee’s negligence, or misconduct.
[15]Employees’ Liability Act 1991 (NSW), Law Reform (Miscellaneous Provisions) Act 1956 (NT) and the Civil Liability Act 1936 (SA). In each case employees guilty of serious and wilful misconduct are not protected by the legislation. The Insurance Contracts Act 1984 (Cth) also abolishes the right of an insurer to enforce the employer’s right of indemnity.
Here, the school authority contests that it is vicariously liable for the acts of Mr Morris, pleading that it is not vicariously liable for any intentional criminal wrongdoing by him. In the absence of vicarious liability the employer could only be liable if it was itself negligent in its duty to Mr Shuttleworth. In this situation the employer’s negligence is potentially through the negligence of its other employees including Mr Bilston or the Marysville Principal. It could not seek an indemnity in respect of any liability to a plaintiff for its own negligence.
The fact that Mr Morris’ actions are intentional criminal conduct on his part is not conclusive of the question of vicarious liability. In Prince Alfred College v ADC[16] the question of vicarious liability of a school authority for the intentional criminal sexual assaults of a teacher was considered. As to the imposition of vicarious liability of an employer generally, the Court said:
In cases of the kind here in question, the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability. As Lloyd shows, it is possible for a criminal offence to be an act for which the apparent performance of employment provides the occasion. Conversely, the fact that employment affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability.[17]
…
Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the "occasion" for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.[18]
[16](2016) 335 ALR 1 (‘Prince Alfred College’).
[17]Prince Alfred College (n 16) [80].
[18]Prince Alfred College (n 16) [81].
In the specific circumstances of the housemaster at Prince Alfred College they said:
In the present case, the appropriate enquiry is whether Bain's role as housemaster placed him in a position of power and intimacy vis-à-vis the respondent, such that Bain's apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment. The relevant approach requires a careful examination of the role that the PAC actually assigned to housemasters and the position in which Bain was thereby placed vis-à-vis the respondent and the other children.[19]
[19]Prince Alfred College (n 16) [84].
In the present circumstances it is simply not possible to make the factual findings necessary to determine whether or not the school authority would be found to be vicariously liable for the acts of Mr Morris. Imposing vicarious liability says nothing as to comparative culpability of tortfeasors, because it is a liability imposed without culpability. Even if the school authority successfully resisted the plea of vicarious liability, the claim of direct liability remained. The existence or not of a vicarious liability does not impact upon the exercise in comparative responsibility apportioning contribution as undertaken above.
It is not appropriate to order that Mr Morris indemnify the school authority.
In the alternative to an indemnity, damages for breach of contract are sought. Where the conduct clearly amounts to a breach of the employment contract, the quantum of any damages might depend upon a finding as to vicarious liability. Otherwise damages include the school authority’s liability to pay damages and costs to the plaintiff, excluding any amounts attributable to the school authority’s own liability. In short, any damages for breach of contract would mirror the amount that Mr Morris must contribute to the settlement amount paid to the plaintiff.
Reasonableness of the settlement amount paid
Mr Shuttleworth’s claim sought both general damages and pecuniary loss damages. It was settled by acceptance of an offer made by the school authority. Section 24(2B) provides:
If in any proceedings for contribution under section 23B the jury or the court, if the trial is without a jury, finds that the amount of any payment made or agreed to be made in settlement or compromise of a claim was excessive the jury or the court (as the case requires) in assessing the amount of the contribution recoverable from any person shall disregard any part of the payment which appears to it to have been excessive.
Turning first to the damages settlement. The plaintiff’s injury is a psychiatric one. I have two psychiatric reports detailing the nature and extent of injury and its consequences on Mr Shuttleworth’s life: Dr Tagkalidis who assessed the plaintiff at the request of his solicitors and Professor Doherty who assessed him at the request of the school authority’s solicitors.
This information is taken from those reports. The injury was inflicted when Mr Shuttleworth was eight years old. He was born in 1959, making him presently 61. He is married and has two adult children and three grandchildren. He left school after year 10 equivalent. He worked for a short time in a service station garage and then worked as a stacker in a supermarket for 10 years. He then started work at VicRoads for approximately twenty years, which he ultimately left after being passed over for promotion on two occasions. He then worked in paving and concreting and was as at 2018, still doing some work self employed as a handyman and doing some maintenance work for a caravan park.
He disclosed the abuse to his family in 2016 in the context of increasing disturbance triggered by exposure to media coverage of matters of historic sexual abuse of children. He had some counselling sessions at the time of this disclosure but has not otherwise had any treatment.
He described an antagonism towards authority figures which Dr Tagkalidis thought contributed to his inability to progress his career by promotions at VicRoads. Dr Tagkalidis recommended psychological sessions for a period of at least two years. He did not think medication was required.
Mr Shuttleworth described intrusive and disturbing images of the abuse which intruded into his conscious mind throughout his life. He described a flat mood with tearfulness and diminished confidence and self-worth. He felt hyper vigilant with his children and grandchildren. His relationship with his wife was solid and supportive.
Dr Tagkalidis diagnosed a chronic dysthymic disorder (previously a persistent depressive disorder) consequent on the abuse. Dr Tagkalidis described this as causing a ‘substantial shift in the trajectory of his development’[20]. There were two ways that the trajectory shifted: first a poorer educational outcome as a result of leaving school, and second a poorer occupational advancement by his ‘inability to climb the ladder of opportunity’[21] at VicRoads.
[20]Report of Dr Tagkalidis dated 19 October 2017, 7.
[21]Ibid 9.
Mr Shuttleworth described to Professor Doherty being told he had a ‘work attitude’ problem when passed over for promotion. He also said that he took some antidepressant medication while working at VicRoads and again in 2017.
Professor Doherty, given a similar description of symptoms, by contrast provided an opinion that Mr Shuttleworth had no diagnosable psychiatric condition. Many of the complaints reported were, in Professor Doherty’s view, contributed to by ‘many’ unrelated incidents of trauma.[22] A reader of the report is left to assume what traumatic events might be relevant. No explanation was given as to why this was so. The history obtained as to the detail of the abuse was likewise limited. No explanation is given as to why the plaintiff might have difficulty with authority figures nor why his symptoms of intrusive thoughts and agitation worsened in 2016 in the context of prominent media on the issue of institutional child sexual abuse. For all these reasons I accept the submission of counsel for the school authority that the views of Professor Doherty were open to criticism and potentially rejection by a court hearing the matter.
[22]Report of Dr Doherty dated 4 March 2018, 8.
Mr Shuttleworth’s solicitors served particulars of special damage claiming future medical expenses at $12,425 based upon Dr Tagkalidis’ recommendations. In respect of loss of earnings the claim was framed on the basis of an ‘altered trajectory’ calculated upon the report of Mr David Heath of Cumpston Sargeant dated 22 August 2018. The calculations are based upon the following assumed facts that but for his injury:
(a)Mr Shuttleworth would have completed high school matriculating in 1976;
(b)past and future earnings are calculated on the assumption that Mr Shuttleworth would have commenced working in full time employment at the beginning of 1977 and received average weekly earnings for a Victorian male and superannuation (from 1992 with the introduction of compulsory employer superannuation) and would have retired at age 68.
The claim for economic loss at least in the period prior to 1989 is necessarily also an estimate of actual earnings as no tax returns are available. The actual earnings as well as the average weekly earnings are estimated from available historic statistical data. The calculations of Mr Heath, allowing a 10% reduction for vicissitudes on future losses only, amounted to particulars of special damage of $1,300,021.00.
The claimed special damages formed a basis from which to assess the potential quantum of the claim, based upon acceptance of the opinion of Dr Tagkalidis and the calculations of Mr Heath. To these amounts an allowance for pain and suffering and loss of enjoyment of life must be considered.
In those circumstances I accept that the settlement figure is not excessive. I should observe that this is not and cannot be a comment on whether the settlement is a reasonable ‘compromise’. That is not my task. Given the information as to the potential quantum of the claim, which the defendant if liable might have to meet in full, the settlement sum is not excessive.
The costs liability was one negotiated on behalf of the school authority and there is no suggestion that it is excessive.
Therefore I propose making an order that the school authority is entitled to recover contribution from Mr Morris in the sum of $478,550, (being 85% of $563,000).
Costs
The school authority also seeks the costs of defending the plaintiff’s proceeding and its costs of the contribution proceeding.
Counsel properly acknowledged that the ‘usual practice’ with regard to both these aspects was that parties bear their own costs. The rationale for such a practice was described by J Forrest J in Zealley v Liquorland (Australia) Pty Ltd & Anor (Costs Ruling):
Moreover, counsel for both defendants were agreed that the usual practice in the common law jurisdiction where a contribution contest takes place after settlement of a plaintiff’s claim is that, absent an offer of contribution under the Supreme Court Rules or a Calderbank offer, each party will bear its own costs. This might sound a little strange, but the reality is that where there is apportionment there is no outright winner.’[23]
[23][2015] VSC 133 [28].
The departure from the usual practice was based in turn on the submission that if I granted a contribution of 100% as sought then the school authority has in reality had an outright win. As I have apportioned contribution so that there is no outright winner it is appropriate in my view to make no order as to costs.

[2020] VSC 143

1 April 2020