Steen v Trustees of the Diocese of Tasmania
[2024] TASSC 3
•15 February 2024
[2024] TASSC 3
COURT: SUPREME COURT OF TASMANIA CITATION: Steen v Trustees of the Diocese of Tasmania [2024] TASSC 3 PARTIES: STEEN, John Thomas v TRUSTEES OF THE DIOCESE OF TASMANIA FILE NO: 3188/2019 DELIVERED ON: 15 February 2024 DELIVERED AT: Launceston HEARING DATES: 12-16, 18, 20, 21, 23 September, 19, 21 October 2022 JUDGMENT OF: Brett J CATCHWORDS: Damages – Generally – Exemplary, punitive, aggravated and like damages – Aggravated damages –
Exemplary damages – Sexual abuse of child by priest – Defendant’s prior knowledge of abuse –
Defendant’s response to abuse
Aust Dig Damages [1006-1013]
Damages – Particular awards of general damages – Tasmania - Plaintiff sexually abused by priest when aged
10 to 16 – Trustees of Diocese of Tasmania - Vicarious liability – Assault and battery - Direct
liability – Duty of care
Aust Dig Damages [1173]
Limitation of actions – Statutes of limitation generally – Operation of state statutes in particular actions –
Other matters - Limitations Act 1974 – Child abuse - Plaintiff sexually abused by priest - Previously settled relevant right of action – Deed of release – Barred cause of action – Set aside
Aust Dig Limitation of Actions [1007]
Cases Cited:
Backwell v AAA [1997] 1 VR 182
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364
BHP Billiton v Schultz [2004] HCA 61; 221 CLR 400
Carter and Another v Walker and Another [2010] VSCA 340
Carter v Walker [2010] VSCA 340, (2010) 32 VR 1
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14, (1983) 151 CLR 447Dann v Port Sorell Bowls Club Inc (No 2) [2020] TASSC 53
Erlich v Leifer [2015] VSC 499
Grant v John Grant & Sons Pty Ltd [1954] 91 CLR 112, 1954 HCA 23 Gray v Motor Accident Commission [1998] HCA 70, 1998 196 CLR 1 Horne v Wilson [1998] TASSC 17
Jadwan Pty Ltd v Middletons [2007] TASSC 74
Lamb v Cotogno [1987] 164 CLR 1
Landsman v R [2014] NSWCCA 328
Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020]
WADC 27
Lonergan v Trustees of the Sisters of St Joseph & Anor [2021] VSC 651
Malec v JC Hutton Pty Ltd [1990] HCA 20, 1991 69 CLR 638
Medlin v State Government Insurance Commission [1995] HCA 5, (1995) 182 CLR 1
Nella v Kingia Pty Ltd [1989] FCA 142
PCB v Geelong College [2021] VSC 63
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62 1968 119 CLR 118
Prince Alfred College Inc v ADC [2016] HCA 37
Project Blue Sky Incorporated & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR
355,
Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021]
WASCA 77
Public Trustee as Administrator of the Estate of Matthew Leonard v Atielo [2023] TASSC 33
Rixon v Star City Pty Ltd [2001] NSWCA 265 53 NSWLR 98; ZAB v ZWM
Roman Catholic Trust Corporation for the Diocese of Sale v WCB [2020] VSCA 328, (2020) 62 VR 234
RW and ME Smith Pty Ltd v Boral Resources (Vic) Pty Ltd [2023] VSCA 182
Simonious Vischer & Co v Holt [1979] 2 NSWLR 322
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Thorne v Kennedy [2017] HCA 49, (2017) 263 CLR 85
TRG v The Board of Trustees of the Brisbane Grammar School [2020] QCA 190
Uren v John Fairfax and Sons Pty Ltd [1966] 117 CLR 118
Wardman v Macquarie Bank [2023] FCAFC 13
West Tamar Council v Leonard [2012] TASSC 68
Whitfeld v De Lauret & Co Ltd [1920] 29 CLR 71
ZAB v ZWM [2021] TASSC 64
Legislation:
Limitation Act 1974
Supreme Court Rules 2000
Civil Liability Act 2002
Supreme Court Civil Procedure Act 1932
REPRESENTATION:
Counsel:
Plaintiff: L Whalan SC, J Cowen Defendant: K Read SC, M Norton
Solicitors:
Plaintiff: Porters Lawyers Defendant: Dobson Mitchell Allport
| Judgment Number: | [2024] TASSC 3 |
| Number of paragraphs: | 335 |
Serial No 3/2024
File No 3188/2019
JOHN THOMAS STEEN v TRUSTEES OF THE DIOCESE OF TASMANIA
REASONS FOR JUDGMENT BRETT J
15 February 20241 The plaintiff, who is now 53 years of age, has brought this action in respect of sexual abuse perpetrated upon him by an Anglican priest when he was a child. The abuse took place on four different occasions between 1981 and 1987, when the plaintiff was aged between 10 and 16. The priest, Louis Daniels, was a prominent staff member and leader of the Church of England Boys' Society (CEBS), and the plaintiff was a member of that organisation. For the sake of convenience and without intending any disrespect, I will throughout this decision, refer to Louis Daniels as "Daniels". The abuse was perpetrated by Daniels during activities either conducted by CEBS or related to its activities.
2 Daniels is not a party to this action. However, the defendant has admitted that he was employed by it and under its supervision and control at all relevant times. The admitted facts also make clear that the defendant is and was the responsible entity constituting the Anglican Diocese of Tasmania, and was responsible for, and had the care, management and control of CEBS at all relevant times. The plaintiff's claim alleges that the defendant is vicariously liable for the acts of assault which constituted the sexual abuse, and further was negligent in its supervision and protection of him. The defendant has admitted liability in respect of both causes of action. This includes full admissions as to the particulars of the abuse perpetrated by Daniels on the plaintiff and the consequent causation of injury to him.
3 There are two primary issues which have been litigated in this action. Firstly, in 1994, when the plaintiff was 23 years of age, he engaged a lawyer to take legal action against Daniels and the Diocese in respect of the sexual abuse. The initial approach was made by the plaintiff's lawyer to the then Anglican Bishop, Bishop Newell, and resulted in relatively prompt negotiations between the lawyers representing the plaintiff and the Diocese respectively. Daniels became a party to the negotiations at an early stage, and had separate legal representation. The proposed claim was settled as a result of these negotiations, and on 2 September 1994, the plaintiff, Daniels and Bishop Newell, executed a deed of release. Under the deed, Daniels agreed to pay the plaintiff $34,000 in damages, inclusive of legal costs. In return, the plaintiff provided a full and comprehensive release from any future liability in respect of Daniels and the Anglican Church, including CEBS, Bishop Newell and other associated entities. The deed also included a confidentiality clause. The defendant has pleaded that the deed operates as an absolute bar to the prosecution of the action, and hence provides a complete defence. The precise effect of the deed is in issue but, in any event, the plaintiff claims that it does not prevent this action on either or both of the following bases:
• That the settlement agreement should be set aside by the Court pursuant to s 5C of the Limitation Act 1974, hence rendering the deed void pursuant to s 5C (4). • That the deed should be rescinded under the general law on the basis that it is unconscionable and/or for fraudulent misrepresentation. 4 The second issue concerns damages. The plaintiff claims compensatory damages, including damages for loss of earning capacity, together with aggravated and exemplary damages. If the deed of release is set aside or rescinded by the Court, then the defendant does not dispute that the plaintiff is entitled to compensatory damages and some measure of aggravated damages. However, the quantum of such damages is in dispute, and further the defendant takes the position that the Court should not award exemplary damages at all.
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5 The evidence in the case consists of the oral testimony of the plaintiff and witnesses called by him on the trial, two witnesses called by the defendant, and a large volume of historical documents. Much of the oral evidence, and the authenticity of the documents, was not the subject of significant challenge or dispute, but there are many factual issues, a number of which concern historical facts, which rely for determination on inferences to be drawn from this evidence. I will identify these issues and the evidence relevant to each in the course of these reasons.
The sexual abuse
6 As already indicated, the specific acts of sexual abuse, the identification of Daniels as the perpetrator, and the defendant's responsibility for his acts against the plaintiff, both on the basis of its vicarious liability for his conduct and breach of its duty of care to the plaintiff, are admitted on the pleadings. However, the plaintiff gave detailed evidence concerning the abuse, and surrounding circumstances. This evidence was not challenged in cross-examination by senior counsel for the defendant, Mr Read SC. I find in accordance with the plaintiff's evidence concerning these matters. My findings based on that evidence, supplemented by associated and undisputed documentary evidence and facts admitted on the pleadings, are set out below.
7 The plaintiff was born in Hobart on 14 January 1971 to Thomas and Wendy Steen. Mr and Mrs Steen were married at the time of the plaintiff's birth. However, they separated at the end of 1983 or the beginning of 1984, and were subsequently divorced. The plaintiff has two siblings, a sister born in 1975 and a brother born in 1977.
8 The plaintiff recalls a happy early childhood, living with his parents and siblings in their home in Hobart. However, it is clear that there were pressures which affected the family at that time. His younger brother was born with cerebral palsy and required intensive physiotherapy throughout the plaintiff's younger years. Both parents had psychological problems. His father, a teacher, had a longstanding drinking problem, which would manifest from time to time. His mother had firm religious beliefs which the plaintiff even then regarded as "strange". The combination led to regular arguments between his parents, although there was no physical violence. The plaintiff's recollection is that the separation at the end of 1983 was largely the result of a relapse of his father's drinking problem, after a long period of abstinence. The plaintiff was in Grade 7 in 1983, and aged 12.
9 The plaintiff's earliest memory of religious attendance was with his mother at her church. She was a committed member of the Baptist church. However, in early primary school, the plaintiff developed a friendship with a boy whose father was the rector of the local Anglican Church. Through this relationship, he met others involved in that church community and was introduced to and eventually commenced to attend meetings and activities conducted by CEBS.
10 Whilst CEBS conducted weekly meetings and other activities during the year, the activity of concern to this case is the annual summer holiday camp. These camps were conducted each year during the summer school holidays, in January. They were conducted over six days and were located at the Montgomery Park Camp Site at Conningham. The evidence suggests that this was a relatively remote location. The camp had a public telephone, but use of the phone to contact family was discouraged except in exceptional circumstances. The evidence about supervision is somewhat vague, but it seems that it was ultimately the responsibility of the camp director, assisted by a number of senior and junior leaders. The senior leaders were typically young adults, in their early twenties, and junior leaders were usually older teenagers.
11 Daniels had been an Anglican priest and heavily involved in CEBS for some years prior to the
acts of sexual abuse perpetrated by him against the plaintiff. He was born on 31 May 1947, became
involved in the Church as a clergy member in February 1974 and was ordained as a priest on 24 February
1975. A document setting out his history of appointments as a priest, shows that between 1981 and 1982,
3 No 3/2024
he held a position as a senior assistant priest at St David's Cathedral. During 1982, he was appointed as
the rector of the Deloraine parish.12 The same document suggests that he was heavily involved with CEBS from at least 1976. He held the position of Chief Commissioner from at least 1978. Of importance to this case, he was the camp director of the annual summer camps throughout the period during which he perpetrated the relevant acts of sexual abuse upon the plaintiff.
13 It is admitted on the pleadings that the first act of sexual abuse occurred in the camp conducted either in January 1980 or January 1981. The plaintiff's recollection is that it was 1981, and he has attempted to fix that time by reference to contemporary events. Irrespective of which year it was, I am satisfied that he was approximately 10 years of age at the time and the abuse occurred during his first attendance at such a camp. It also occurred shortly after the first time he met Daniels.
14 This first occasion has been termed in the pleadings as "the bunk bed assaults". This is a collective term for a series of assaults that occurred on two or more occasions during this camp. The plaintiff described one of these assaults as follows:
"So, by that time in the camp, I'd had interesting conversations with Daniels, to the extent that a child of that age can be interesting, and he had paid me a lot of attention
and when he came into the room, he sort of – you know, rubbing my back and I thought…that's nice but as the rubbing progressed and as it went down beneath my pyjamas…onto my penis and testicles, I had a horrible feeling that something was really wrong. That – that shouldn't happen"
15 This assault came to an end because the plaintiff rolled over and Daniels "…left the room
quickly".
16 The plaintiff confirmed that these assaults happened more than once. He attempted to protect himself by lying on his front but still remembers Daniels' hands going under his pyjamas. The assaults occurred in a sleeping area that was occupied by other attendees at the camp. They happened at night, after bedtime, when the other attendees where in their bunks. The plaintiff is not aware that any of the assaults was witnessed by other attendees. The plaintiff's evidence is that he was confused by Daniels' conduct, in particular by the conflict which arose from Daniels' authority and position, both as a CEBS leader and a priest, and the plaintiff's instinctive understanding that what was happening was wrong.
17 The plaintiff did not tell anyone about the abuse. In particular, he did not tell his parents. He continued to be involved in the CEBS movement, and attended further camps. At around the age of 12, he was invited to and did participate in leadership training. He seems to have developed a relatively wide network of friends, both adults and young people of his own age, within CEBS and the wider Anglican community. He was regularly involved in religious observance in the Anglican Church, and underwent the rite of confirmation in 1984.
18 As already noted, the plaintiff's parents separated in 1983 and were divorced on 14 January 1985. Towards the end of 1984, the plaintiff was living with his father. He received a telephone call from Daniels inviting him to attend the CEBS summer camp in 1985. The plaintiff was a junior leader by that stage. The plaintiff's evidence was that he was flattered by the invitation. This was the first time that Daniels had ever contacted him by telephone.
19 The second and third acts of sexual abuse took place at the camp in January 1985. The plaintiff was then aged 14 years. The second act, entitled in the pleadings as "the dormitory assaults" took place on the day that the plaintiff arrived at the camp. His father had driven him there but did not stay. Upon arrival, the plaintiff entered the dormitory which housed the junior leaders. The dormitory was empty, except for Daniels. It seems that the other junior leaders and attendees had gone to a nearby beach. The plaintiff described what happened next as follows:
4 No 3/2024
"I guess initially I was pleased to see him. … I remember him being in a short terry
towel and blue bath robe, which is probably a little bit strange for later in the morning, but it didn't occur to me as being terribly out of order initially. So I went to shake his hand and greet him, as you would. He hugged me and then got me into a hug which I
couldn't break free from, and – yeah, I really froze. I just – and then when he kissed me
and he put his tongue into my mouth, the thing I remember about that is his really bristly
moustache. It was horrible, and it didn't stop. It went for a long time."
20 The plaintiff explained that he felt "pretty paralysed" during this assault. He remembers being held by Daniels while he was being assaulted by him, and the size and weight advantage that Daniels had over him. He was very confused and scared, particularly because of Daniels' position as "the man who represents God". He has to this day recalled the feel "of the moustache on the mouth".
21 After some time, the plaintiff managed to break free. He went immediately to the beach to find his friends. He did not tell them what had happened.
22 The third assault, known as "the outdoors assaults" took place at the camp a few days later. The plaintiff was on his way from the camp to the beach to meet other camp leaders who had preceded him there. It was dark. Daniels followed him, caught up with him on the way to the beach and assaulted him. He took him in "a restrictive hug". This assault included kissing "for a long time" with "the tongue in the mouth", and rubbing the plaintiff's groin over the top of his jeans. Eventually, the plaintiff "wriggled out and broke free".
23 The plaintiff cannot recall any other sexual assaults taking place at that camp. He does recall some inappropriate touching, including hugs and arms around a shoulder, but cannot recall other sexual assaults.
24 The plaintiff continued his involvement in CEBS after this camp. He did not tell anyone, including his parents, what had happened. In discussing his reasons for this, the plaintiff observed that he was then a very young person who had been abused by a highly regarded and popular priest. The plaintiff was very confused by Daniels' conduct and his own conflicting emotions. He made the point on a number of occasions during his evidence that he felt shame and guilt, but also knew that what Daniels had done was wrong. However, he enjoyed the camps, and it is clear that his involvement in CEBS provided him with an important social network and support, particularly at a time when his parent's marriage was in difficulty. He was finding his home life difficult. He had stayed living with his father, after his parents' separation, mainly because of the proximity of friends in the area. His mother had also commenced attending a church of a different denomination, and entered a relationship with a man there who had strict religious views. The plaintiff described struggling with both the new religion and his mother's new partner.
25 In the Christmas school holidays of 1986-1987, the plaintiff participated in a road trip with companions from CEBS. The trip took place between Christmas 1986 and mid to late January 1987. The plaintiff was 15 at the time. The purpose of the trip was attendance at a CEBS event on the Gold Coast in Queensland. Seven people, including Daniels and the plaintiff, travelled in two cars. Other participants were fellow CEBS leaders, Sue Clayton, Peter Francis and CD. Ms Clayton was a teacher, aged in her early twenties, who was involved in CEBS through her youth work in the Anglican community. She was the senior member of this group of leaders. Mr Francis was a couple of years older than the plaintiff, and a university student at the relevant time. He had become involved in this CEBS group through Ms Clayton. Mr CD is about the same age as the plaintiff. He was not actually a member of CEBS but attended some of the camps. He met the plaintiff at one of these camps and they became friends.
26 The trip to the Gold Coast was organised by Daniels and it is clear that he was the person in
authority. The plaintiff's evidence is that he found Daniels' involvement in this trip threatening, because
of the previous sexual abuse. However, he also wanted to be with his friends. In order to avoid Daniels
5 No 3/2024
as much as possible, he elected to travel in the car driven by Sue Clayton. Daniels drove the other vehicle. During the trip, there was an overnight stop-over at Mossman, where the group stayed in Church facilities. There was a party that night during which the group, including those who were under 18, were provided with access to significant quantities of alcohol by Daniels and another adult male from the local parish. The plaintiff's evidence is that he observed that Daniels became focussed on CD. Photographs taken at the party show Daniels holding CD, who was then aged 15, on his lap. Both appear affected by alcohol, the youth extremely so. The plaintiff's case is that this was an example of Daniels' predatory behaviour at the time. It is also significant that this conduct took place in a Church environment and during a Church-related activity. However, the plaintiff also gave evidence that apart from what he regarded as some inappropriate hugs and other types of non-sexual physical activity, he does not recall Daniels attempting to engage in any form of sexual abuse against him during this trip. His evidence was that he did find Daniels' interest in his friend CD "deeply uncomfortable".
27 The final act of sexual abuse, known as the "river assaults", occurred in March 1987, when the plaintiff was 16 years of age. By this time, Daniels had been appointed as the rector of the Deloraine parish and occupied the rectory associated with that parish. He was the only church official to occupy the rectory, although a "permanent boarder" also lived there.
28 The relevant events occurred around a meeting of junior leaders of CEBS at the rectory. Those present included the plaintiff, Peter FrancisCD, AB and Sue Clayton. Mr AB was a member of CEBS, roughly the same age and level as the plaintiff and CD. Daniels, of course, was also present. During the course of the meeting, those present went as a group for a walk to the nearby river. The plaintiff became separated from the group during the walk and decided to go for a swim alone in the river. While he was swimming, Daniels approached his location. He asked the plaintiff to go for a drive with him and the plaintiff agreed. His explanation for agreement was that he was nervous to the point of feeling in danger. Daniels also provided him with a purpose for the trip which was to survey a potential camp site for a future CEBS camp. Daniels, in fact, drove to a secluded place at the end of a trail along the river and at that location engaged in the sexual abuse. The plaintiff described this as follows:
"When you reached the river and got out of the car you were assaulted, as we've heard,
are you able to talk about what happened?......I can . So the road, which is a dirt road,
goes to a place which is quite close to the river and we walked down to the river where,
again, grabbed me, hugged me, pulled me fully in close again, a kiss, the tongue in my
mouth, and I wiggled free fairly quickly and the Meander River at that point is a fairly
shallow river and as I was able to reach a couple of stepping stones and then step ontoa stone that was a bit off shore an there wasn't enough room on that stone for both of
us, so it was a pretty– it was a safe spot, so I could wait there until he gave in.
When you say you were able to free yourself quickly, for how long did he have you in that hold?......It would have been about a minute, I guess, I mean the hugging starts and
then – then the kissing and then, you know, it – it was the shortest time period compared
to the others and I wriggled free a lot faster than I did previously, and the place to besecure was on a rock that was big enough to support one person.
Did you draw that – did he say anything to you as he had you in that hold?......He didn't
say anything while I was in the hold.Did you say anything to him once you freed yourself?......After a while he – he did make an effort to go into the river to – to step on stones and I think he realised fairly quickly
that he wasn't going to be in a position where he could actually grab me and kiss me, so it was a stand off and I said 'Look, I really want to go back to my friends,' and he said, 'Okay.'
Was that the entirety of the conversation, or – ?......No, we started walking back to the
car and we walked past the hut that exists at the top of that place, and he said, 'Would
you like to have a look inside the hut,' and I said, 'No, I want to go home.'6 No 3/2024
What other way of getting back to the others did you have?......No other way, it's a long drive."
29 It seems that the group attending the meeting stayed at the rectory that night. The arrangement was that the junior leaders attending the meeting would sleep in a large bedroom which contained a number of beds. As the plaintiff was going to bed, Daniels suggested that the plaintiff should sleep in his bedroom. The plaintiff rejected this request.
The Anglican Church is informed of the abuse
30 At some point, there were conversations between Peter Francis, CD, AB and the plaintiff in which each of the latter three revealed that he had been sexually abused by Daniels. Peter Francis and CD also gave evidence on the trial. They each confirmed these conversations and disclosures, but their recollections differed as to their timing, in particular whether the conversations took place immediately at the Deloraine rectory on the night of the meeting, or subsequently. These discrepancies are immaterial and none of the witnesses was challenged as to the substance of this part of the narrative.
31 The upshot of the conversations was that they all felt it necessary to report Daniels' conduct to the Church. Their primary purpose in doing so was to ensure action was taken against him and that he was not put in a positon to commit similar conduct against other young people in the future.
32 It was decided to inform David Hayman, a young clergy member whom they trusted. With their permission, David Hayman reported the matter to Bishop Newell. Eventually, a meeting was arranged between Bishop Newell, the plaintiff and Peter Francis. The meeting was held shortly after in the Diocesan offices at St David's Cathedral. No one else was present. The plaintiff's evidence is not clear on the degree of detail that he provided to the Bishop but it is clear that he disclosed that Daniels had committed sexual abuse against him. The plaintiff recalls the Bishop asking him if he would be prepared to make a statement in front of a group of senior clergy and whether he gave permission for the Bishop to discuss the matter with more senior colleagues. The plaintiff had made it clear that he wanted the information provided to Bishop Newell kept confidential but agreed to these requests. His recollection is that there was no discussion about referral to police and the Bishop did not ask him what he wanted from their discussion. However, although he found the process stressful and intimidating, he also felt
relief that he had "been listened to… and taken seriously". The plaintiff left the meeting with an
expectation that there were would be a further meeting.
33 Peter Francis' recollection largely accords with that of the plaintiff. He remembers that the plaintiff "told him all about his details, and also told the Bishop that there were two others involved and their names". Those were, of course, CD and AB. When asked to elaborate on the detail provided, he said:
" John told him as much detail as John felt comfortable in doing so, that in fact
something very illegal had happened and that it was against John’s wishes and that John was a minor and it was in the camping – in the situation of a camp at Montgomery Park
in Conningham."
34 He recalls that there was "some discussion about going to the police but it was never encouraged and that was the situation all the way through". At the conclusion of the meeting, the Bishop asked the plaintiff to provide him with a written statement with respect to Daniels' conduct.
35 The plaintiff did in fact prepare a written statement, which he forwarded to Bishop Newell by mail after the meeting. The statement is in evidence. It describes two incidents, the bunkbed assaults and the dormitory assault. The detail provided is consistent with his evidence in respect of those assaults. The plaintiff explained that he was concerned about providing this statement because he had not been told how it would be used and did not know if it would be made public or if the information in it would be disclosed to his parents.
7 No 3/2024
36 A second meeting took place a few weeks later. It was arranged by Bishop Newell. The plaintiff's recollection is that the principal point of discussion was an enquiry by Bishop Newell as to whether the plaintiff would be prepared to "go in front of an official church enquiry and say this, make these claims". The plaintiff's reaction to this was that he "started to wonder if I had been believed because I was being asked to provide proof, further evidence, further level of testing". He assumed that this was the advice that the Bishop had received from more senior members of the Church. However, he agreed that he would participate in such a process if requested. The plaintiff described his reaction after the meeting as being distressed and frustrated. He was also concerned for his friends, and had been told that AB had not gone forward with the complaint. He was frustrated about this at the time, but now feels guilty because of the later suicide of AB. It is a matter of record that AB took his own life on 11 May 2004.
37 Sometime later, a third meeting was arranged at the request of the Bishop. The plaintiff recalls that the meeting took place at the Bishop's house at Bishops Court, Fitzroy Place and that he caught a bus to that location. His recollection is that this meeting was in August 1987 but as I will discuss in a moment, there is some other evidence concerning the timing of this meeting. He recalls that the meeting was "a pastoral chat in his library", during which he was asked "And what would you like to see happen
to … Reverend Daniels". The plaintiff responded that he did not know but asked whether Daniels was
receiving counselling. Bishop Newell replied in the affirmative, left the room and then ended the conversation. He invited the plaintiff to "feel free to contact me at any time". The plaintiff does not recall any further contact from Bishop Newell after that.
38 There is a statement in evidence prepared by Bishop Newell dated 6 May 1994. According to this statement, his appointment diary shows meetings with Peter Francis and the plaintiff on 3 June, 5 June and 18 June 1987. The meetings were arranged as a result of contact from Sue Clayton. Ms Clayton explained the general nature of the allegations. Bishop Newell states that he cannot recall when he asked "the boys to put in writing their account of what had happened", but he did subsequently receive two accounts, one each from CD and the plaintiff. The Bishop's statement says that the "series of interviews" enabled him to ascertain the allegations, to see "the priest concerned" and "inform the boys of the action which I had taken or was proposing to take". The statement says that he wrote to the plaintiff and CD on 5 August 1987 offering to meet with them again but that they did not "further follow up that invitation". The Bishop does not explain the purpose of this proposed meeting.
39 The Bishop's statement confirms that he did have a meeting with Sue Clayton on 19 June 1987 and a meeting with CD on 27 June 1987. In his evidence, Mr CDn confirmed his attendance at this meeting. He was taken to and accompanied at the meeting by Sue Clayton. The Bishop had arranged the location, which was in a café at the Albert Hall in Launceston. Mr CD understood that this location was selected by the Bishop because he was attending another event at the Albert Hall. However, the café was crowded and he found the need to discuss intimate matters in such a public place difficult. He was asked to verbally describe the conduct perpetrated on him and then asked to write a letter, which he agreed to do. The Bishop discussed with him possible courses of action, which included reporting the matter to police, but the Bishop did not present this in a positive way. The Bishop asked him "Would you be willing to stand up in front of a group of people in a public environment and reveal the information?" Mr CD testified that he "didn't want necessarily for Lou to be gone from the Church, but I didn't want him to be put in a position where he was able to interact with young children, young males in that way ever again". He was not offered any form of personal or therapeutic support. He did subsequently prepare a written statement, which he forwarded by mail to the Bishop.
40 Both the plaintiff and Mr CD spoke in their evidence of their emotional reaction to these meetings. They were both around 16 years of age at the time and had been the subject of serious sexual abuse perpetrated upon them by a person each regarded as a senior member of the clergy. Understandably, each was nervous and intimidated by the experience of speaking to the Bishop, whose status in the church was well known to them. Both also emphasised the popularity of Daniels, within
8 No 3/2024
the church community and with parishioners such as their parents. He was described by Mr CDas "a very charismatic individual". The plaintiff had feelings of shame and guilt arising from his inability to prevent the priest from perpetrating these acts and continuing his involvement in CEBS thereafter. Of course, these are very understandable feelings but there is of course no objective reason why the plaintiff should accept any responsibility whatsoever for the conduct of Daniels. The fact that he experienced these feelings is, however, relevant to his subsequent actions and decision-making, as well as the impact of the relevant tortious conduct on him.
41 I am satisfied that the Bishop, in these meetings, focused almost exclusively on the action, if any, that he should take in relation to Daniels. I find that he did not discuss the option of reporting the matter to the police with the plaintiff and although it seems that he did with CD, it was done in a way to discourage him from taking that course of action. I find also that at no stage did the Bishop offer, or even inquire about, support for the plaintiff. He was aware of Sue Claytons' involvement, but I am satisfied that there was no focus whatsoever on the question of professional or therapeutic support. Quite frankly, the offer to call him again, made at the end of the third meeting, was unlikely to be of any real benefit to the plaintiff.
42 I am satisfied also that the one consolation which each youth took away with him from these disclosures to the Bishop was that each believed that the Church would take appropriate action and would at least ensure that Daniels was removed from any further opportunity to abuse children. As will be seen, this consolation was misplaced and quickly destroyed, by the actions of Bishop Newell and others within the hierarchy of the Church.
The Church's prior knowledge of Daniels' misconduct
43 Before considering the specific response of the Church to the disclosures made by the plaintiff and others to Bishop Newell, and how it dealt with Daniels thereafter, it is relevant, in order to complete the contextual history, to consider what knowledge the Church had of Daniels' propensity to sexually abuse children prior to the commission of his abuse against the plaintiff.
44 As already observed, Daniels was ordained a priest on 24 February 1975 and had been the Chief Commissioner of CEBS since 1978. The allegation that these offices placed him in "a position of authority, power, care, intimacy and supervision over" children participating in either Church and/or CEBS activities is admitted on the pleadings and obvious in any event. His subsequent conduct suggests that the assaults perpetrated against the plaintiff were not the first time that he had used his position to engage in sexual abuse against children.
45 It is, in fact, admitted on the pleadings that in 1981, a complaint was made to the Diocese that Daniels had sexually propositioned a 14 year-old-boy. He subsequently admitted to the then Bishop Administrator of the Diocese, Bishop Henry Jerrim, and former Bishop of the Diocese, Bishop Robert Davies, that the allegation was true. It is further admitted that Bishop Davies "verbally rebuked Father Daniels and asked him to receive counselling from a senior priest", and that between 1982 and 1985, Bishop Jerrim informed Bishop Newell about the 1981 incident. There is little evidence about the nature of this incident. In a statement taken in 1999 from Peter Stuart, the then Rector of the Moonah Parish and the Archdeacon of the Clarence Parish, by investigators in respect of a Church Inquiry, Mr Stewart alleges that Bishop Jerrim had been approached by a minister of the Uniting Church on behalf of the parents of the child concerned and advised of "Daniels' inappropriate sexual behaviour with the boy". He also states that the Bishop was never made aware of the identity of the child or his parents or the exact nature of the behaviour. After these discussions, Bishop Jerrim spoke to Daniels and "was probably assured that it was a one off incident". The matter went no further. The information in Mr Stuart's interview is clearly based on hearsay, and should be treated with a degree of caution, but it is also consistent with facts admitted on the pleadings.
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46 A further piece of evidence relevant to this question is the testimony of Janet Coop. Ms Coop was Bishop Newell's secretary between 1990 and the Bishop's retirement in 1998. She first became aware of the allegations against Daniels in 1994. Subsequently, she learned of Daniels' resignation as a priest. She recalls that there was a meeting between Bishops Newell and Stone at that time. She was asked to and did gather up all documents concerning Daniels and placed them in archive boxes. They were gone from the bishop's office the next day, and she was later told that they had been taken to a garage in Moonah. She also noticed soon after that all references to Daniels on her computer had been removed. Finally, when the Royal Commission into Institutional Reponses to Child Sexual Abuse ("the Royal Commission") commenced its investigation, she was asked to assist Bishop Newell to prepare his responses to written questions from the Commission. One of the questions related to whether Bishop Newell had been advised by Bishop Jerrim about allegations of sexual abuse against Daniels in 1981 or 1982. When he read the question, he commented to her "I thought that Bishop Jerrim had dealt with that matter as administrator at the time". However, in his evidence at the Royal Commission, Ms Coop heard Bishop Newell deny that he had been briefed by Bishop Jerrim about these allegations.
47 I accept Ms Coop's evidence. She was not cross-examined. It is consistent with, but does not advance much further, the admissions on the pleadings already discussed. Further, the specific knowledge of Bishop Newell, although important, is not necessary, to establish the defendant's prior knowledge of Daniels' propensity for sexual abuse. The fact that this knowledge was held by Bishops Jerram and Davies at the relevant time is attributable to the defendant. What this evidence does demonstrate, however, is the early focus by Bishop Newell and others on the protection of the Church from harm arising from Daniels' conduct, rather than a focus on the welfare of the children affected by his actions. I will return to this later in these reasons.
48 I find in accordance with the admitted facts and accept the truth of the evidence contained in the interview with Mr Stuart. Accordingly, I find that by 1981, responsible members of the defendant were aware of the prior behaviour of Daniels, which involved sexual misconduct against a child. Notwithstanding this knowledge, Daniels was permitted to continue his work as a priest and his involvement with CEBS. The latter gave him unfettered and direct access to young persons and children, including in the unregulated and isolated circumstances arising from the CEBS camps. Further, although I am not able to find that this knowledge predated the bunkbeds assaults on the plaintiff, it clearly did in respect of the balance of the sexual abuse perpetrated by Daniels against him.
Response by the Church to the plaintiff's allegations and Daniels’ ongoing involvement in Church
activities.
49 Once again, none of what follows is disputed, and much of it is admitted on the pleadings. However, it is important to understand the detail of the narrative because of its significance to the issues which are to be determined in this case.
50 In the statement made by Bishop Newell in 1994, he sets out the steps that he took following the meetings with the plaintiff and others in 1987. These are:
•
He first raised "the issue" with Daniels on 4 June 1987, the day after his first meeting with Peter Francis and the plaintiff. He says that there were a number of subsequent interviews in which he
confronted Daniels with the allegations. In respect of Daniels’ response, he said "If he did not
explicitly admit responsibility and guilt, he certainly acted as one who did not want to deny the
allegations and he was prepared to accept my demands and discipline".
•
He rebuked Daniels and pointed out "that such actions cannot be tolerated in those who hold positions of leadership and trust in the Church".
•
He required Daniels to resign from CEBS and discontinue any association with youth work of the Diocese.
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• He required Daniels to seek appropriate counselling. 51 Bishop Newell also says that in determining and handling the matter in this way he was "advised and took counsel from the primate of the Anglican Church of Australia, the Most Reverend Sir John Grindrod concerning the course of action outlined above". In a statement provided by Bishop Newell to a Church Inquiry conducted in 2017-2018 examining his conduct following his evidence to the Royal Commission, Bishop Newell elaborated on his responses to the plaintiff's allegations. Some of the points made by him in this statement are as follows:
• He was sure that the 1987 conversation with Sue Clayton which preceded his conversations with the plaintiff and Peter Francis, were his "first knowledge of any complaints about the sexually inappropriate conduct by Mr Daniels or any other person". In particular, he denied receiving information from Bishop Jerrim or Bishop Davies prior to his consecration as Bishop in 1982 concerning the prior complaint against Daniels. He accepts that he must have been informed about this at some time but believes that it would have been much later than 1982. • He asserted that he made it clear to both the plaintiff and CD that they should each inform their parents and the police about what Daniels had done to them, but it became immediately clear to him that neither wanted to do so. He also spoke to his brother, a retired senior police officer from Victoria Police and was advised by him "that if the boys did not want their parents told, that there was nothing further to be done". • He consulted two friends who were psychiatrists. Neither suggested that he should inform the police. • The primate, Archbishop Grindrod, did not advise him to report the complaints to the police. • On 5 June 1987, he spoke to Dr John Morris, who he described as a specialist in behavioural disorders. 52 Bishop Newell stated in that document that "Daniels admitted that he had abused the two boys". Because he had "immediately and frankly admitted his conduct, I believed that I could trust him". In subsequent statements, including one made in 2018, he maintained the position that he believed that he could trust Daniels and accept his word that he would not repeat the conduct.
53 It is not contested, and consistent with admissions on the pleadings, that Daniels was thereafter promoted to positions of pastoral responsibility within the Diocese and administrative responsibility within the wider Anglican Church. Further, despite the assurance which Bishop Newell claimed to receive from him that he would no longer be associated with CEBS, he continued his involvement in this organisation for some years.
54 Daniels remained in his position of rector of the Deloraine Parish until September 1988. On 2 September 1988, Bishop Newell appointed him as the rector of the parish of Burnie with oversight of the parish of Cooee. In the 1994 statement, Bishop Newell said that he "further questioned" Daniels prior to this appointment. He concluded that there was "no continuing impediment to his appointment to another parish". In 1989, Daniels was promoted to the position of Archdeacon of Burnie. In the pleadings, this role is described as "one of the highest ranking positions in the Diocese", an allegation admitted by the defendant. On 25 October 1991, at a meeting of the General Synod of the Anglican Church of Australia in Sydney, Daniels was elected to that body on the nomination of Bishop Newell. On 24 February 1993, the primate of the Anglican Church in Australia, Archbishop Keith Rayner, confirmed Daniels' acceptance of his invitation of appointment to the role of Chairman of the General Synod Youth Commission.
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55 I cannot determine precisely the duration of Daniels' continued involvement in CEBS, in defiance of the requirement that he resign from that office, and have nothing further to do with the organisation. However, it is clear that it went on for some years. Further, the evidence establishes that this ongoing involvement occurred with the knowledge and apparent approval of Bishop Newell. The minutes of a meeting of the State Council of CEBS Tasmania held on 13 February 1988 record that Daniels presented the Chairman's report and held the role of "Lone Leader". Further, a motion for Daniels to be appointed as a Life Vice President of CEBS in Tasmania was "carried with acclamation". The minutes record that Bishop Newell was present at that meeting.
Allegations concerning Daniels resurface in 1994
56 In early 1994, the sexual abuse of children by Daniels again came to the attention of church authorities in the Diocese of Tasmania. According to facts admitted on the pleadings, a relative of the plaintiff notified Bishop Stone, who was then the Assistant Bishop of the Diocese, of Daniels' sexual abuse of the plaintiff. Further, in around May 1994, the plaintiff decided to initiate legal action against the Diocese in respect of Daniels' assaults upon him. He consulted a lawyer, who then communicated with both Daniels and the Church in respect of this proposed claim. A series of negotiations followed and ultimately a settlement was reached in September 1994. The settlement was formalised by a Deed of Release. I will return to the circumstances concerning this settlement in greater detail shortly.
57 These events seem to have prompted Bishops Newell and Stone to further reflect on what action the Diocese should take in respect of Daniels. One option was a formal disciplinary tribunal process, but Bishop Newell decided that there was insufficient evidence to warrant such a process. Instead, he issued Daniels with a letter of solemn admonition. The letter is dated 28 July 1994 and is marked strictly confidential. The letter itself amounts to a rebuke in respect of the conduct perpetrated against the plaintiff. It specifies a number of conditions, and states that compliance with these are "absolutely necessary if you are to continue to be a licenced priest in this Diocese". The conditions sought Daniels' "solemn assurance" that, since Bishop Newell's verbal admonishment of Daniels in 1987, there had been no repetition or further occurrence "of this kind of criminal assault by you and consequent breach of trust". He was required to live his life " beyond reproach", and that in the event that he was offered a position in another Diocese, the bishop of the relevant Diocese would be informed of the allegations of sexual abuse. It was also a condition that he should decline any approach for appointment as a bishop. Of some significance is a condition which provided that in the event of the initiation of civil or criminal action regarding the sexual abuse against the plaintiff or anyone else, "such action would create a public situation such that your resignation as a licensed priest would be immediately required". It is clear from the contents of this letter that it was written by Bishop Newell on the premise that Daniels would continue to operate as a priest in the Diocese, and continue to hold the elevated roles to which he had recently been promoted. In my view, the letter is nothing more than a reiteration of the requirement that Daniels should continue his work in the Diocese and not repeat conduct, which would be illegal and contrary to his priestly obligations in any event. It is a matter of some significance that the only requirement for his resignation as a priest, based on the allegations which had already been made by the plaintiff, was in the event of the initiation of legal action, and then only because such action would "create a public situation". The clear implication was that provided the plaintiff's allegations did not come to the attention of the public in such a way, they would not prevent Daniels continuing in his existing roles.
58 On 3 August 1994, Daniels wrote to Bishop Newell acknowledging the letter of solemn admonition and accepting its terms. This letter did not contain any admission of the plaintiff's allegations.
59 It is clear that Daniels was permitted to remain in and act within, his role of Archdeacon of Burnie, and as a member of the General Synod Youth Commission for some time after this exchange of correspondence. The minutes of a meeting of the General Synod in Sydney conducted on 27 and 28
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October 1994 indicate that Daniels attended the meeting in the said capacities and indeed spoke to the activities of the Youth Commission. There is no reference in those minutes to either the letter of solemn admonition or the facts and allegations which underlay it. Further, the evidence of Bishop Christopher Jones, who was an assistant priest in the Burnie Parish at that time, confirms that Daniels was very active in his role as parish priest. Bishop Jones was not informed of the allegations against Daniels until events which occurred in November 1994.
60 On 22 November 1994, Daniels resigned from his role as the rector and Archdeacon of Burnie and from his positions on the General Synod standing committee and as Chairman of the General Synod Youth Commission. The letter of resignation expressed regret for the pain he had caused the Church "as well as the pain and suffering caused to his parents and family". While the letter arguably contains implicit admissions of wrong doing, he did not make these admissions expressly. Further, he does not express any regret or remorse for the harm he inflicted on the plaintiff, and his other victims.
61 According to a statement prepared by Bishop Newell, the resignation followed a telephone call made to him at 5pm on the preceding day, by the stepmother of a 17 year-old-male, who had gone to the police and "laid charges" against Daniels for "sexual molestation" which had "been going on for three or four years". He then contacted Daniels to inform him of the allegation. Daniels' response, according to Bishop Newell's statement, was "O God, I thought I had fixed that". The letter of resignation arrived the following morning.
62 Bishop Jones' recollection is that around that time, he was informed by Bishop Stone that Daniels "had sexually abused children and he was leaving". He was not given any further details, but he was told that Bishop Newell would be making an announcement, and that he and the other assistant priest should say nothing until the announcement had been made and new arrangements put in place. Bishop Jones assumed that the announcement would specify the reason for the resignation. However, the announcement from Bishop Newell when it came at the end of November 1994 simply indicated that Daniels "has resigned for his own personal reasons". Bishop Jones' evidence is that he was surprised by the lack of transparency, and assumed that more information would be provided to the congregation over time. However, this did not happen "for years". Bishop Jones and the other curate were posted to other parishes soon after this.
63 On the third and fourth of March 1995, a meeting of the standing committee of the General Synod took place in Sydney. I infer that this was the first such meeting after Daniels' resignation. The minutes record that both the primate, Dr K Rayner, and Bishop Newell were present. The meeting was informed of Daniels' resignation, and there was discussion concerning the vacancies created by it on the standing committee and the Youth Commission, but there is no reference in the minutes to the reason for the resignation, or indeed any of the allegations which had been made against Daniels over time. However, I am satisfied, and find that at the very least, the primate and, of course, Bishop Newell were well aware of this information. Further, despite the serious and concerning nature of these allegations, there is no reference to any discussion about such issues, or the Church's response, during this meeting. On the contrary, the minutes record that a motion was carried recording the appreciation of the standing committee "of the significant contribution made by the Reverend Lou Daniels to the Australian church, and in particular its General Synod, its standing committee and its Commissions" and conveying the Committee's "appreciation and good wishes" to him.
64 It seems that Daniels left Tasmania, and moved to the ACT soon after his resignation from the
Tasmanian Diocese. The evidence suggests that he involved himself in lay pastoral work within the
Anglican Church in that jurisdiction, and applied for, and obtained, a teaching position in the public
education system there. In May 1997, Bishop Newell wrote to Bishop Browning, the Bishop of the
Diocese of Canberra and Goulburn, and the ACT Department of Education, advising of the allegations
which had been made against Daniels by the plaintiff and others, and expressing his concern that Daniels
might be employed in any capacity in which he would "come into contact with young males in
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circumstances in which he may have the opportunity to abuse the trust reposed in him" in relevant capacities. In July 1997, the Catholic Education Office in the ACT, sought information about Daniels because he was also registered as a casual teacher in that system. It is clear from this correspondence that information about the allegations against Daniels had not been provided to these organisations before this.
65 On 30 October 1997, Bishop Newell publicly announced the establishment of a church inquiry into sexual misconduct by clergy and officers of the Tasmanian Diocese. The inquiry, entitled "Not the Way of Christ" was conducted by a barrister and a psychologist. Its terms of reference were largely concerned with systemic issues. While the inquiry received information about specific cases, including that of Daniels, there was no detailed analysis of same, nor did it make any specific recommendations concerning a response to that case.
66 There is no doubt that Daniels continued to perpetrate child sexual abuse during the time that he was in Burnie. On 28 May 1999, Slicer J sentenced Daniels to imprisonment for a period of twelve months, with the last three months suspended, for four counts of indecent assault and two counts of unlawful sexual intercourse committed against a 15 year old youth in February and April 1992. On 13 May 2005, his Honour sentenced Daniels to a further term of imprisonment of seven and half years for a series of sexual crimes, including four counts of maintaining a sexual relationship with a young person and several counts of indecent assault and attempted indecent assault, which were perpetrated during a course of conduct which spanned between January 1974 and December 1993. Clearly, some of that period related to Daniels' tenure in the positions to which he was promoted after Bishop Newell had learned of the sexual abuse relating to the plaintiff. Neither case related to the assaults perpetrated against the plaintiff. However, I was informed at trial that Daniels had recently been charged with further offences, including those committed against the plaintiff. These were still pending when I reserved my decision. The records of the Court disclose that he subsequently pleaded guilty to 2 counts of persistent sexual abuse of a young person, one of which was comprised by the assaults committed against the plaintiff. On 12 May 2023, Estcourt J imposed a global sentence of 6 years' imprisonment, with a non- parole period of 4 years.
67 It is clear from the sentencing comments in each of these cases, that with one minor exception, the crimes were committed against males under 17 years of age, and involved predatory conduct which utilised Daniels' position as a priest to gain and then abuse the trust of these young people.
68 Daniels was deposed from holy orders on 13 December 2002. This occurred as a result of a tribunal process initiated by Bishop Browning, after Daniels had returned to the ACT upon completion of the first of the prison terms.
The 1994 settlement
69 The conversations with Bishop Newell in 1987 took place when the plaintiff was 16 years of age and in year 11. His evidence is that after 1987, he had limited direct contact with Daniels. However, he was very aware of the Church's reaction, that is the promotion of Daniels to higher office within the Church, and Daniels' ongoing involvement in CEBS. This had a significant impact on him. He described this impact on a number of occasions during his evidence, including in the following answer:
"There was a pattern emerging ……it was really obvious that something had gone very
wrong in terms of what we had said, and alerting the church to Daniels and his behaviour, and then what happened next was moving, promotion, and a national recognition for contribution to CEBS. We'd built up a picture that we'd been disregarded."
70 The plaintiff completed Grade 12 at Friends School in 1988. In 1989, he enrolled in a science degree at the University of Tasmania. The plaintiff's evidence is that the sexual abuse perpetrated by
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Daniels had a significant impact on his school education, and the career options available to him when entering tertiary studies. The extent of this impact, in particular on his earning capacity, is a significant issue in this case, and I will return to it in more detail in due course.
71 There is no real dispute that the impact of the sexual abuse affected the plaintiff's psychological health, and his academic performance in the University course. The plaintiff's evidence is that he struggled in his first year. He regularly missed classes, did not complete work and developed a significant drinking problem. At the end of the year, he was placed on academic probation because of poor results. Over the following 2 years, 1990 and 1991, with the assistance and support of a friend and his family, the plaintiff improved his academic performance and completed the undergraduate degree. He completed an Honours degree, achieving first class honours, in 1992.
72 The plaintiff's evidence is that by the end of the Honours year, he was "completely burnt out" and quite ill. He contracted pneumonia, and the symptoms persisted for some time. He had been working long hours and he attributes this work ethic and its consequences to his need to divert himself from the psychological consequences of the sexual abuse.
73 In 1993 or 1994, the plaintiff commenced a PhD in biochemistry. He describes himself as being "very depressed" as he pursued these studies during 1994. He had ceased involvement with the Anglican Church by then. During that year, in a "severely depressed" state, he undertook a sole hiking trip in order to make "an evaluation of my life" and determine whether it was "worth continuing". At the conclusion of this trip, he made a decision to seek legal advice with respect to Daniels and the crimes which he had perpetrated against him. My impression from his evidence was that he had no particular goal in mind in taking his step, other than to seek advice. As he described in evidence, his first approach to the solicitor was to describe the history, including that which related to what he regarded as "the cover-up" and he asked the lawyer what could be done about it. He had by this stage had no treatment in respect of his psychological or emotional state. He was 23 years of age.
74 The plaintiff consulted David Smith, who at that time was an associate with the firm Ayliffe and Ayliffe. Mr Smith was the partner of a fellow student of the plaintiff. The plaintiff described him as "a junior solicitor", and both parties in this case proceeded on a common understanding that Mr Smith was, at that time, relatively inexperienced. However, the plaintiff did have an initial conversation with Bill Ayliffe, a principal of the firm. After that discussion, the plaintiff decided to commence what he described as "a civil claim", and that Mr Smith would act for him at "reduced costs, essentially pro bono".
75 After engaging Mr Smith, the plaintiff was referred to a psychologist, Christine Clifford. The referral was clearly made for medico-legal reasons, but Ms Clifford also provided therapeutic services to the plaintiff. As I have already noted, this was the first professional assistance which the plaintiff had sought or received in respect of his psychological state. In a report to Mr Smith dated 9 May 1994, Ms Clifford noted psychological difficulties that the plaintiff had experienced, including anger towards the church, in particular with respect to the promotion of Daniels after the disclosure of the abuse, as well as his recent problems with respect to his studies and use of alcohol. Ms Clifford expressed the opinion that these problems were the result of the indecent assaults perpetrated by Daniels and that the impact of this abuse was both direct and indirect. In a further letter to Mr Smith dated 17 May 1994, Ms Clifford advised that the plaintiff had attended at her rooms on 13 May 1994 and was "clearly significantly depressed". His main concern was what he perceived to be the "stalling" of the church regarding a scheduled meeting. She felt his current level of depression was severe and that "he can fall into a deep depressive state very quickly". She referred him to a psychiatrist, Dr Laurence McCafferty.
76 The purpose of this referral was for psychiatric treatment, but Dr McCafferty also provided Mr
Smith with a medico-legal report dated 7 June 1994. Dr McCafferty expressed the opinion that although
problems in the plaintiff's family of origin during childhood "likely had a significant impact on his
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psychological development", the sexual abuse was having "a major detrimental effect on his mental health" and continued to do so. Dr McCafferty considered the "vulnerabilities in his personality because of his adverse family environment would likely make the effects of sexual abuse during adolescence more traumatic".
77 The first contact between the plaintiff's lawyers and the Church occurred on 14 April 1994,
when Mr Smith wrote to the Church, marking the letter to the attention of Bishop Newell. The letterreferred to "a number of indecent sexual assaults perpetrated…by the Reverend Louis Daniels". It
specified the first having occurred in December 1981 and advised that the assaults continued until the plaintiff was approximately 16 years of age. It noted that particulars of the assaults had been provided during the meetings with Bishop Newell in 1987. It referred to what the plaintiff regarded as a cover-up by the Church and "a distinct lack of concern for the victims". The letter advised that the plaintiff wished "to enter into negotiations with a view to a mutually acceptable settlement." There was a request for an admission of liability by the Church in respect of Daniels' actions and an implied threat of legal action if the admission was not forthcoming. The letter also provided an "indication" of the plaintiff's demands, which were listed as the dismissal of Daniels and monetary compensation for pain and suffering, and to meet the cost of counselling. The plaintiff confirmed in evidence that the letter reflected his aspirations in respect of the proposed legal proceedings.
78 I observe at this point in the narrative that the proposed legal action was directed towards the Anglican Church, and not towards Daniels directly. The lawyer did not write to Daniels at all. It is clear from the plaintiff's evidence that he was well aware of this. I am satisfied that the plaintiff's primary interest at this point was to ensure that the Church dismissed Daniels. This was consistent with the fundamental reason for the plaintiff's original complaint to Bishop Newell in 1987, and the plaintiff's ongoing disappointment in the Church's treatment of Daniels' since then.
79 Although Mr Smith's letter had requested a response within seven days, Bishop Stone requested further time. He then engaged Andrew Abbott who was, at that time, a partner in the firm of Dobson Mitchell Allport, to act on behalf of, and advise, the Church. Mr Abbott gave evidence at the trial and confirmed this engagement.
80 Some of the correspondence between Mr Smith and Mr Abbott, and Mr Abbott and Bishop Stone, has been admitted in evidence. It seems likely that what is in evidence does not constitute all of the written correspondence between those persons. Further, I have no doubt that their communication also included verbal discussions. In any event, a number of matters can be inferred and concluded from the evidence placed before me. It seems clear that as soon as Mr Abbott was engaged, he discussed the matter on a "without prejudice" basis with Mr Smith more than once. It is clear also that the focus of Mr Smith was to bring the defendant to an early conference, with a view to achieving a negotiated settlement. I infer that the defendant's purpose in seeking advice from Mr Abbott included an assessment of its own liability for the actions of Daniels, as well as whether or not it could obtain indemnity for any such liability under its public liability insurance policy. On 5 May 1994, Mr Abbott
wrote a lengthy letter of advice to Bishop Stone. The letter was headed "Public Liability – QBE". Mr
Abbott expressed the opinion that the acts, which were described as having occurred during January 1986 and January 1987, "comprised trespass to the person of the victim, and accordingly the victim would have a cause of action against the clergyman for damages including aggravated and exemplary damages". Mr Abbott noted that there was "at least a substantial question as to whether or not the church is legally responsible for the acts of the clergyman". Mr Abbott deferred further advice on this question pending a determination of whether the church decided to "stand behind the clergyman" or not. He noted that in the event it did not, Daniels would require separate representation.
81 It is apparent from the letter of advice, and confirmed by Mr Abbott in his evidence, that the only basis of liability on the part of the defendant considered by him was its vicarious liability as the
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employer of Daniels at the time he committed the relevant assaults. He gave no consideration to and did
not raise, the prospect of direct liability based on negligence.82 In addition to the insurance question, Mr Abbott's letter provided the following advice:
(a) The vicarious liability of the Church for the acts of Daniels is unclear. (b) That a limitation defence was applicable and that both the church and Daniels would be entitled to rely on it "as a complete defence". However, Mr Abbott advised that to do so may attract "severe adverse publicity" and "bring the Church into odium if not contempt". (c) On the basis of conversations with Mr Smith, it seemed the matter was capable of settlement. In particular, the dismissal of Daniels was no longer not negotiable and the plaintiff was prepared to accept the advice of his solicitors as to the amount he recovered by way of damages. He noted that "their client is interested in a negotiated settlement and in avoiding publicity". 83 On 6 May 1994, Bishop Stone provided Mr Abbott with the confidential statement of Bishop Newell, of the same date, that I have already discussed in some detail. In a further letter of advice to Bishop Stone dated 9 May 1994, Mr Abbott acknowledged consideration of this statement and advised that it was more probable than not that the insurer would successfully deny liability. He also advised that "technically speaking, admissions have been made" and that those admissions would assist the plaintiff on trial. In his testimony before me, Mr Abbott was cross-examined in some detail by senior counsel for the plaintiff, Ms Whalan SC, on the question of whether he had been instructed, or had concluded, that either Daniels and/or the Church had made admissions concerning the perpetration of the sexual abuse and consequent liability. Mr Abbott's evidence about the relevant circumstances was heavily qualified by his claim to have no independent recollection of the matter, although he did concede that a review of relevant documents shortly prior to giving evidence had refreshed his memory to a limited extent. He was not prepared to concede that his instructions included direct admissions of fact by either Daniels or the Church. At its highest, his comment to his client about admissions involved an interpretation of Bishop Newell's statement that Daniels "did not explicitly admit responsibility and guilt" but had "acted as one who did not want to deny the allegations". Mr Abbott also conceded that it may well have been that he was instructed to assume that the allegations were true for the purpose of his advice and representation of the Church. However, he did not have an independent recollection of this.
84 The letter goes on to discuss the decision required from the Church as to whether it would "stand behind the clergyman and not seek to recover from him any amount in respect of the damages" that will be paid to the plaintiff. It is clear from subsequent events that a decision was made by the Church not to support Daniels or pay for those damages, and Daniels did engage separate representation, from Mrs Audrey Mills, a partner of the firm of Piggott Wood & Baker.
85 Mr Abbott wrote a further letter of advice to Bishop Stone on 13 May 1994. By this time, he was in possession of the report from Dr Clifford. The letter describes the plaintiff as "suffering from psychological problems of a moderately serious nature, but that his prognosis is relatively good". There had obviously been an agreement reached with Mr Smith to provide particulars of damages. The letter confirms that Daniels was in the process of obtaining separate legal advice and that it was likely "that Mr Daniels will be prepared to join in the settlement of the matter".
86 In a further letter of 25 May 1994, Mr Abbott reported to Bishop Stone that he had conferred
with Daniels' solicitors and had "been informed that Mr Daniels accepts that the payment of the amount
required to settle the matter will be his responsibility rather than the responsibility of the Church". He
then confirms that he has communicated two matters to the plaintiff's solicitors, both of which were
clearly designed, and accepted as such by Mr Abbott in his evidence, to persuade the plaintiff to accept
a lesser sum than he might otherwise. The first was that if the Church was to contribute financially to
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any settlement, then the payment "would be required to be authorised by Diocesan Council and in that event the inevitable wide publicity of the matter would result in Daniels dismissal". Secondly, he said this:
"It has further been explained to the solicitors acting for Mr Steen that the means available to Mr Daniels to satisfy the terms of settlement are limited, and that it will be necessary for him to obtain loan finance. The intention in making this plain to the solicitors acting for Mr Steen is to lower their expectations as to the amount required to settle the matter, which will affect the advice that they give to their client about the matter."
87 In his evidence, Mr Abbott accepted that his reference to "the prospect of wide publicity" may have been made with the knowledge that it might affect the plaintiff's intentions. He accepted that the reference to the need for Daniels to obtain loan finance was, as the letter says, to lower settlement expectations but contended that this was a reasonable and legitimate tactic to employ in the negotiations. In any event, Bishop Stone's response was contained in a letter dated 31 May 1994, which stated "The progress made thus far is satisfactory indeed". The letter also contained a list of individuals and organisations that should receive the benefit of a release from liability if the matter were to settle. This included not only the defendant, but the Anglican Church generally, Bishop Newell, any incumbent Bishop of Tasmania, CEBS and some other organisations, clearly related to the Church, which do not seem to have any direct relationship to the relevant basis of liability.
88 On 16 June 1994, Mr Smith wrote to Piggott Wood & Baker, Daniels' solicitors, setting out the particulars of the plaintiff's claim "with some certainty". The letter advised that the plaintiff was "willing to accept the sum of $55,000 plus costs in settlement of his claim against" Daniels and the Church. The claim was particularised as follows:
Pain suffering and loss of amenities $25,000 Past medical expenses $1,076 Future medical treatment $9,080 Loss of future earning capacity $20,000 89 The letter suggested that in respect of the claim for loss of future earning capacity, "a broad brush approach should be adopted". It was asserted that depression and other psychological effects of the abuse would result in "at least a six to twelve month delay" in completion of the plaintiff's PhD.
90 Some further observations can be made in respect of this letter. Firstly, it is clear that by the time it was written, the plaintiff's lawyer was aware, and was proceeding on the basis, that Daniels was to be personally liable for meeting the settlement sum. Secondly, there is no mention in the letter of any obligation on the part of the Church, including the dismissal of Daniels. Accordingly, it seems that the plaintiff had accepted by this time that Daniels' dismissal would not be a condition of the settlement. Thirdly, the particulars do not claim any additional sum on account of aggravated or exemplary damages.
91 In relation to the potential liability of the Church, the letter rejected "Mr Abbott's contention that the Church are not and cannot be held liable for the actions of" Daniels and stated that the Church would be joined as a defendant if the matter proceeded to litigation. This is consistent with Mr Abbott's evidence that his "own researched view was that there was no vicarious liability and that (Daniels) was not relevantly 'the Church' at the time so, therefore, the Church was not liable". I reiterate that Mr Abbott confirmed in evidence that he had not considered the possibility that the Church may have liability for negligence.
18 No 3/2024
92 The letter concludes with confirmation that a copy was being sent to Dobson, Mitchell and Allport. This clearly occurred, because on 20 June 1994, Mr Abbott wrote to Bishop Stone enclosing a copy of Mr Smith's letter and providing advice in relation to it. Mr Abbott calculated the appropriate damages in the aggregate sum of $27,526, as follows:
General damages $10,000 Past medical expenses $1,076 Future medical treatment $6,450 Economic loss $10,000 93 He advised that settlement of the matter "within the range $15,000 - $20,000 would be satisfactory". He sought and presumably obtained instructions to inform Daniels' solicitors of this opinion and "to generally liaise with them with a view to settling the matter within that range on the terms previously discussed between us, that is, on the basis of a release incorporating an appropriate confidentiality clause".
94 This was the last correspondence in evidence concerning the negotiations. However, I infer, and indeed Mr Abbott confirmed in his evidence, that there were ongoing discussions between the three lawyers. A letter from Mr Abbott to Bishop Stone, dated 6 July 1994, confirms that the matter "has settled for the sum of $34,000 inclusive of Mr Steen's costs, on the basis that settlement be confidential and be put into effect by release".
95 Mr Abbott enclosed a draft deed with that letter, which had been prepared by him for approval by Bishop Stone. Between that time and 2 September 1994, the deed, in its final form, was signed by the plaintiff, Bishop Newell on behalf of the Church and associated organisations, and by Daniels. The settlement sum of $34,000 was paid to Ayliffe and Ayliffe on 1 September 1994. After deduction for costs, the plaintiff received the net sum of $29,690.10.
96 It is worth recalling that the letter of solemn admonition written by Bishop Newell is dated 28 July 1994, three weeks after confirmation of the settlement. This fact supports the inference that the defendant's intention at the time of the settlement was not to dismiss Daniels as a result of the sexual abuse he had perpetrated against the plaintiff and others, at least while the allegations against Daniels remained out of the public arena.
97 The deed of release names the parties to it as the plaintiff, Daniels and the various organisations which together comprise "the Anglican Church". The body of the deed is divided into two parts entitled "Recitals" and "Operative part". The recitals include the following:
•
The plaintiff's allegation that Daniels in his capacity as a priest of the Anglican Church unlawfully sexually assaulted the plaintiff in or about January 1986 and January 1987 at Montgomery Park in Tasmania. These allegations are called "the sexual assault allegations" for the purposes of the deed. There is no reference to any other assault.
•
It records that both Daniels "has denied and continues to deny the sexual assault allegations and liability to the plaintiff for the personal injuries". "The personal injuries" is a reference to the plaintiff's allegation that he "suffered and continues to suffer personal injury, loss and damage" by reason of the "sexual assault allegations".
•
It records that "the Anglican Church has denied and continues to deny liability to the plaintiff for the personal injuries".
300 Ms Whalan submitted that, on the evidence, an appropriate approach to the assessment of the extent of this impairment is to regard his earning capacity as completely destroyed from the likely time of complete retirement, which is age 58. I disagree. As I have already noted, I think that the plaintiff's natural aptitude, and passion for aspects of his work, will enable him to cope with part time work, and he is likely to do this indefinitely. I think that despite the practical difficulties he described, he will, with his experience and broad array of contacts, both in academia and industry, have the capacity to secure remunerative work on a part time basis. In my opinion, the more accurate way to assess damages for future loss of earning capacity, is to do so over the whole period between now and age 67, but on the basis that he will have a partial earning capacity over that entire period. I assess his residual earning capacity at 40% of his current income projected over the period to age 67.
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301 There is, of course, also the need to take into account other positive and negative contingencies. On the negative side, there are the usual events, such as illness, mortality, injury and unemployment, which may have interrupted the plaintiff's future earning capacity in any event. On the positive side, there are the possibilities that the plaintiff would have obtained promotion, or have entered the mining industry some time ago and now be earning a much higher income than is currently the case. Mr Plover has compared various scenarios in his report. For reasons already given, I do not intend to attribute any significant degree of probability to the likelihood that the plaintiff would have been working in a mining industry career of the nature described by Mr Barlow. However, the possibility of ongoing promotion and increased income within academia is far more likely. In my view, the appropriate way to proceed is to equate the negative to the positive, so that they cancel each other out. the Accordingly, I will assess damages for loss of earning capacity in the future on the basis of 60% of the plaintiff's current income, calculated on the appropriate basis for the period between now and age 67.
302 The question of the plaintiff's current aggregate earnings was a matter of debate and somewhat imprecise evidence. Mr Plover produced calculations and tables, relying on assumptions contained within his instructions, and group certificates in respect of the University income. However, it seems to be common ground that he omitted some aspects of income, such as the Reykjavik University honorarium. Mr Read argued that other aspects of income were left out, including an honorarium payable to the plaintiff in his position of Deputy Head of School. In the end, Ms Whalan came up with an aggregate gross figure of $285,000, and Mr Read $260,000. Neither of these figures were the subject of calculation by Mr Plover which, in this respect, rendered his evidence somewhat redundant.
303 In the end, I am satisfied that the need for me to make a judgment, rather than a precise calculation, concerning the question of future economic loss does not require absolute precision. I prefer Ms Whalan's calculation, and will adopt a figure of $3,500 per week, which is the result after deduction for tax, as the basis for the calculation of future earning capacity. It is common ground that the appropriate discount rate is 3%. The multiplier over 13 years, from 2024 to age 67 is 563.2. Using the weekly sum of $3,500 the calculation produces a result of $1,971,200. Sixty per cent of this is $1,182,720. This is the sum I assess as damages for loss of earning capacity in the future.
Loss of future superannuation benefits
304 There is a complication with respect to the calculation of damages in respect of loss of future superannuation benefits. Mr Read submits that superannuation is not payable on part of the current income of the plaintiff, in particular honorariums. While the evidence about this was not completely clear, I accept that it is unlikely that superannuation contributions will be made on income in the form of honorariums, for example that emanating from Reykjavik University. The evidence of Mr Glover established that an appropriate contribution rate for the purpose of calculating contributions is 10%. As I understand the submissions of the parties, there is no real challenge to this evidence. Accordingly, when calculating the future superannuation that the plaintiff would be entitled to over the 13 year period discussed above, I will take into account the income received by the plaintiff from UBC and BRIMM, excluding honorariums. Accordingly, I intend to adopt the annual income figure of $239,968 utilised by Mr Plover in table five of his report.
305 The relevant calculation therefore is:
$239,968 x 10% = $ 23,996.80
Weekly superannuation contribution
$461.47 x 563.2 = $259,899.90 60% thereof = $155,940.00 67 No 3/2024
Past medical and associated expenses
306 The plaintiff's claim for past medical and associated expenses is particularised as a past need for psychiatric and psychological treatment. The claim for expenses which the plaintiff has incurred as out of pocket expenses includes those which have been paid through Medicare in accordance with a valid notice of charge, expenses paid through private health insurance in respect of which there is a notice of past benefits, amounts paid by the plaintiff, including three gym sessions per week at a cost of $99 per session, and any medication and unpaid expenses. There is no further particularisation in the particulars, but rather a statement that the plaintiff "estimates a global figure of $10,000 for general practitioner treatment, psychiatric treatment and past out of pocket expenses". There has been no specific evidence provided by the plaintiff to support the claim for out of pocket expenses.
307 There is ample and unchallenged evidence that the plaintiff received, and presumably paid for, a significant amount of psychological and some psychiatric therapy arising from symptoms confirmed by Dr Weissman to be attributable to the sexual abuse. This included ongoing psychological therapy with Christine Clifford which seems to have commenced in 1994 before the settlement and continued until 1996. After the plaintiff's move to Queensland, he had several sessions with a male psychologist. This treatment took place in 2005, and he saw the psychologist six or seven times. He then saw another psychologist, Narelle Dickenson, and undertook EMDR treatment for the first time. He recommenced this treatment with Ms Dickenson in 2017 and was still receiving this treatment when he saw Dr Weissman for the purpose of his first report in 2018. He had clearly sought medical assistance from a GP before seeing Dr Weissman and told him that he has been prescribed pharmaceutical medication. In 2017, he commenced taking Pristiq and has continued to do so since then. In 2022, he commenced taking Wellburtin, which he continues in addition to the Pristiq.
308 In a statement which the plaintiff made to the Royal Commission on 21 January 2016, he said that "the money from the settlement enabled me to get psychological help. There have been times when I have definitely needed it". He confirmed the truth of this statement in cross-examination. His evidence about this was not challenged and I accept it. I infer from that statement that he incurred actual cost in respect of some of his psychological therapy. There is also some imprecise evidence that it was partly met from Medicare, pursuant to mental health care plans provided by a general practitioner.
309 I conclude, therefore, that the plaintiff has undertaken a considerable amount of medical treatment and psychological therapy as a result of the tortious conduct for which the defendant is liable. I find that the plaintiff has actually incurred some cost in respect of that therapy, but the evidence is insufficient to enable me to calculate that cost with precision. Of course, this does not relieve me from the responsibility to assess damages where there has been actual compensable loss.
310 Accordingly, doing the best I can on the evidence presented to me, I accept that the plaintiff's compensable therapy and medication has continued from time to time over several years. I accept the plaintiff's argument that $10,000 is a conservative estimate for such expenses. It is approximately one third of what the plaintiff recovered from the 1994 settlement. I will allow past medical and associated expenses in the sum of $10,000.
Future medical and associated expenses
311 Again, the plaintiff's claim under this head is contained in its particulars. There is a claim based on a future need for fortnightly sessions with a psychologist over a period of two years, an ongoing claim for the cost of medication on a permanent basis, and a claim for the cost of consultations with a psychiatrist for advice and review of psychotropic medication, again on a permanent basis. The claim is particularised and discounted over relevant periods at a discount rate of 3%. The total claim is $71,711.
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312 The claim is consistent with the evidence of the need for future treatment contained in Dr Weissman's reports and/or evidence. The defendant accepts that there is a need for ongoing medical treatment. As to the calculation contained in the particulars, Ms Norton submitted that there is no evidence to identify the cost of providing that treatment while the plaintiff remains in Canada. The particulars are based on costs identified for provision of the treatment in Australia. Further, counsel submits that there is evidence to suggest that while in Canada, the plaintiff may be entitled to secure all of the treatment under a public health care system.
313 It is true that the claim is based on the cost of provision of the treatment in Australia, and not Canada. Neither party has adduced evidence concerning the commensurate cost in Canada. In assessing damages under this head, it is necessary for me to make an assessment of what will be the reasonable cost of providing the treatment into the future. I have no difficulty in finding that the cost in Australia is an appropriate basis for calculation. I think it is highly improbable that the cost of private provision of these services in Canada would be significantly less than the commensurate cost in Australia, and further there is a real possibility that the plaintiff may well return to Australia at some time in the near future in any event.
314 The defendant's submission that the cost of future medical treatment can be met by some form of public insurance scheme in Canada is based on evidence provided by the plaintiff's wife, Kelly Steen, in cross-examination. However, this proposition was not put to the plaintiff during his extensive cross- examination. In respect of Mrs Steen's evidence about this, Ms Norton put to her in cross-examination that as the plaintiff and she were permanent residents of Canada, they were "entitled to local health care benefits under the medical services plan, is that right?" She agreed with this, referring to the plan as "MSP". There was a further question about whether this plan entitled a permanent resident to "public health care" to which Mrs Steen agreed. That was the end of that evidence, and no further detail has been provided to me concerning the nature of the entitlement, whether it is subject to repayment in the event of a damages claim and provided conditionally on that basis, whether it will cover the type of treatment that the plaintiff will require in the future, and generally whether there are any other conditions or limitations concerning that health care system. I am not even clear as to what knowledge or expertise Mrs Steen had about this issue. In my view, it is reasonable that the plaintiff be entitled to compensation which will ensure that he can access the psychiatric, psychological and pharmaceutical support that he needs, without reliance upon a public health care system about which I know virtually nothing. He has not claimed the cost of future GP visits. I am satisfied that the claim made and particularised in the particulars is a reasonable one. I allow damages for future medical and associated expenses in the claimed sum of $71,711.
| Interest | |
| 315 | By s 35A of the Supreme Court Civil Procedure Act 1932, the Court when making a judgment requiring the payment of an amount of money may order that the amount or part thereof carries interest "for the whole of any part of the period commencing on the day after the day on which the cause of action arose and ending on the day on which the judgment is entered". The interest must be assessed at a rate not exceeding the prescribed rate. This maximum rate is prescribed by r 5A (2) of the Supreme Court Rules 2000. The plaintiff seeks pre-judgment interest pursuant to s 35A on two components of the award of damages, past economic loss and non-economic loss, including the general award, aggravated damages and exemplary damages. |
| 316 | Section 35A commenced on 9 September 2019. Prior to that, there was no statutory power to |
| award interest on pre-judgment damages in Tasmania. Since its introduction, the section has been | |
| considered in three Tasmanian cases. The first was a decision of Wood J in Dann v Port Sorell Bowls | |
| Club Inc (No 2) [2020] TASSC 53. Her Honour comprehensively considered the operation of the |
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provision, in the context of decisions made in other Australian jurisdictions in respect of comparable legislation. The second decision to consider and apply the provision was ZAB v ZWM. In that case, the Chief Justice summarised principles which he found were "clear from her Honour's analysis" in Dann:
" The power to award pre-judgment interest is designed to assist the Court to do
more complete justice between the parties.• The purpose of an award of interest is to compensate a plaintiff for being kept out of monies that, in law, were payable to him. • The power to award interest is also intended to provide discouragement to defendants from delaying the settlement of claims or the conclusion of proceedings. However, the discretion is not to be exercised punitively. • All of the relevant circumstances have to be given due and proper consideration. • Late notice of a claim for interest is a factor that can weigh against the making of an award of interest."
317 The third case is a decision of Porter AJ in Public Trustee as Administrator of the Estate of Matthew Leonard v Atielo [2023] TASSC 33. I will return to this decision shortly.
318 In my view, there is no question that an award of interest on some components of past loss is appropriate. The real issue, which is encapsulated in the debate between the parties, concerns the date from which that interest should be calculated, and this incorporates an issue concerning the retrospectivity of s 35A. The plaintiff submits that interest should be calculated retrospectively. Accordingly, it is submitted, in respect of past loss of earnings, the calculation should be made from 1993 and calculated at 4% per annum. It is further submitted that in respect of the three heads of damages of non-economic loss, the claim for interest should be calculated from the date of accrual of the cause of action.
319 The defendant submits that interest should not be awarded at all, given that prior to the changes in law, the defendant "had no reason to contemplate an award of interest". Further, it is submitted that it should not be considered in respect of the claim of exemplary damages because the award of interest is intended to be compensatory and not punitive.
320 In Dann, Wood J concluded that it appeared from the terms of s 35A with "reasonable certainty" that a retrospective power was intended. Blow CJ agreed with this in ZAB v ZWM, relying in particular on the words "for the whole or any part of the period commencing on the day after the day on which the cause of action arose and ending on the day on which the judgment is entered". This is also consistent with decisions in other jurisdictions. For example, French J (as he then was) found to that effect in respect of comparable legislation in Western Australia in Nella v Kingia Pty Ltd [1989] FCA 142. His Honour's determination was approved by the Western Australian Court of Appeal in Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77.
321 In ZAB v ZWM, the Chief Justice relied on this finding to award interest to the plaintiff calculated in effect from the date of accrual of the cause of action. However in Dann, Wood J's conclusion that the operation of the section applied retrospectively was not the end of her Honour's analysis of the date from which the interest calculation should be made. In particular, her Honour went on to consider the exercise of discretion in respect of the appropriate award. In this regard, her Honour concluded, after analysis of authorities in other jurisdictions, that having regard to the consideration that the purpose of pre-judgment interest is to achieve fairness and complete justice between the parties, it would be unfair in the circumstances of the case to award interest calculated prior to the commencement of s 35A. In coming to this conclusion, her Honour considered that a significant factor affecting the exercise of discretion was the reality that prior to the commencement of the section, the defendant had no notice of its potential liability with respect to interest. In this regard, reliance was placed on a decision
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of the Court of Appeal of New South Wales in Simonious Vischer & Co v Holt [1979] 2 NSWLR 322, and in particular a view expressed by Moffitt P in respect of comparable legislation in that jurisdiction as follows:
"The legislature left it to the court, in the exercise of a discretion, to deal with the whole period. However, the substantive nature of an award [of interest], and ordinary principles of fairness, make it difficult to contemplate that the discretion would ever be exercised in respect of the period prior to the commencement of the Act. No such award should be made in the present case."
322 This view was followed by Porter AJ in Public Trustee v Atielo:
"In Dann (No 2), at [28] Wood J said she could not see how a retrospective order fulfilled the purpose of s 35A of achieving fairness between the parties, and determined that the fair result in that case was to make an award calculated from the time when the section commenced. Her Honour referred to the decision in Simonius v Vischer [1979] 2 NSWLR 322 in which Moffitt P, in the same context, said it would be difficult to contemplate the discretion would ever be exercised in respect of the period before the commencement of the Act. That seems to be established practice, at least in New South Wales: Aussems v Commonwealth of Australia [2005] NSWSC 217 at [65]."
323 His Honour adopted the same course and allowed interest from the date of commencement of s
35A.
324 This was also the view ultimately adopted by French J in Nella v Kingia Pty Ltd:
"Section 32 operates retrospectively in the sense that interest may be awarded in relation to causes of action that arose and periods of time that elapsed before it came into operation - Foyster v Goynich (No. 2) (1984) WAR 91, 93 (Burt CJ); Harper v Phillips (1985) WAR 100, 104 (Burt CJ); Brasser v Graham (1985) WAR 180, 181 (Brinsden J.). Whether or not interest should be awarded in respect of a period prior to the coming into operation of the section is a matter of discretion. Ordinary principles of fairness suggest that that discretion will not readily be exercised in favour of the award of interest - Australian National Airlines Commission v Commonwealth (1975) 6 ALR 433, 437 (Mason J.); Simonius Vischer & Co. v Holt (1979) 2 NSWLR 322; Clybucca Holdings Pty Ltd v Hill (1984) WAR 44, 46 (Brinsden J.). No compelling reason has been advanced and I am not persuaded in the circumstances of this case that interest should be awarded in respect of the period prior to the coming into effect of the amended s.32 on 20 June 1983."
325 On the other hand, as I have already noted, in ZAB v ZWM, a case dealing specifically with childhood sexual abuse, Blow CJ considered that the inability of the plaintiff to commence proceedings until changes in the law permitted that to occur, was the critical factor in the exercise of discretion in that case. The relevant changes in the law were the abolition of limitation periods in respect of childhood sexual abuse, which were enacted by s 5B of the Limitation Act which commenced on 1 July 2018. However, ZAB v ZWM was not a case which involved setting aside a prior settlement.
326 In the case before me, there are some further factors which may affect the exercise of discretion. In particular, this is the first case in this State involving setting aside a prior settlement under s 5C of the Limitation Act. The plaintiff was not able to bring an application to set aside the previous settlement until s 5C commenced on 1 May 2020.
327 I agree with Blow CJ that the inability of the plaintiff to bring an action until changes in the law
is a significant factor affecting the exercise of discretion. Of course, in this case, the plaintiff was able
to bring an action in negligence. The plaintiff did commence negotiations with the view to bring such
an action in 1994 and this resulted in the settlement which has now been set aside. Complicating the
issue is that the setting aside of the prior settlement in part relied upon the oppressive conduct of the
defendant. An arguable position is that the setting aside of the deed means that it should be ignored in
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determining the question of the date from which entry should be calculated. This is particularly so given that the defendant did not contribute to the settlement sum. On the other hand, the defendant did, at least, engage in settlement negotiations, and obtained a lawful release from liability. From that time until the law permitted the deed to be set aside, the defendant had no reason to think that it would be liable in respect of a further claim at all, let alone a claim which bore interest.
328 Ultimately however, in my view, there is considerable weight in the authority cited above which considers that justice to both parties, including the defendant, means that there is general unfairness in calculating interest on a period which preceded the commencement of s 35A. I am persuaded by and rely on these authorities, and I see no reason in this case to adopt a different position. Of course, in the majority if not all of those cases, the proceedings were extant when the law permitting pre-judgment interest to be claimed came into effect. In this case, the plaintiff commenced his action three months after the commencement of s 35A. In my view, there can be no question that from the commencement of the action on 9 December 2019, the plaintiff has been kept from money to which he was lawfully entitled at that time. Accordingly, it is appropriate to calculate pre-judgment interest from the date of commencement of the action on the whole amount of damages awarded for past economic loss. In respect of damages for non-economic loss, I accept Mr Read's argument concerning exemplary damages. I would not award interest in respect of that head of damage, but will award it in respect of the whole amount of the general component for non-economic loss and aggravated damages.
329 In respect of the relevant rate, I intend to adopt the position of both Blow CJ and Wood J, and calculate interest on a simple basis at 4% per annum. Had I been calculating from an earlier date, I may well have reduced this rate to account for the fact that the damage reflected loss of earnings and non- economic loss which accrued throughout that lengthy period. This would seem to be consistent with the approach adopted in other jurisdictions. However, given the date chosen by me, the commencement of the action, it seems to me that there is a strong argument that the whole of the damages became payable then, and the plaintiff is to be compensated for the fact that he has been kept from that money from that time. In my view, the rate of 4% per annum on the whole of each sum provides him with the appropriate amount of compensation.
Deduction of amount paid under deed
330 Section 5C(6) of the Limitation Act permits the Court when awarding damages in relation to the action to take into account any amount paid under an agreement that is wholly or partly void under subs (4), to the extent to which the amount relates to child abuse to which the cause of action relates. The Court can only do so if satisfied that it is just and reasonable.
331 I am satisfied in this case that the full amount paid under the deed does relate to the child abuse to which the cause of action relates. However, I am not satisfied that it is just and reasonable to take that payment into account in respect of the calculation of the award of damages. My reasons for this are because the defendant did not contribute at all to that payment, and the defendant's conduct in utilising that fact in an effort to reduce the amount of the settlement. At least part of that money was utilised by the plaintiff to provide himself with some psychological therapy, in a context in which he had been offered no assistance at all by the defendant, despite the defendant being well aware of its default arising from prior knowledge of Daniels' propensity. Further, the conduct of the defendant since the abuse, and the compounding effect that has had on the lifelong impact suffered by the plaintiff, means that it is, in my view, not just and equitable, to effectively give the defendant the benefit of this payment. Accordingly, the payment will not be taken into account in the award of damages in this case.
Interest calculation
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332 The aggregate of damages awarded for pain, suffering and loss of enjoyment of life, aggravated damages, past economic loss and past medical and associated expenses is $760,000.
333 The relevant period is 4.15 years. Hence, the calculation is:
| ||
| Conclusion |
334 The relevant calculation of damages, including interest, is as follows:
Pain, suffering and loss of enjoyment of life $ 275,000 Aggravated damages $125,000 Exemplary damages $100,000 Past impairment of earning capacity $350,000 Future impairment of earning capacity $1,182,720 Future loss of superannuation benefits $155,940
Past medical and associated expenses $10,000 Future medical and associated expenses $71,711 Interest $126,160
Total $2,396,531
335 My orders are as follows:
1 That the agreement effecting a settlement between the parties in 1994, and evidenced and contained in a deed dated 2 September 1994, is set aside pursuant to s 5C of the Limitation Act 1974.
2 That judgment be entered for the plaintiff against the defendant for the sum of $2,396,531.
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