TT v The Diocese of Saint Maron, Sydney & Ss (No 3)

[2024] NSWSC 943

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

TT v The Diocese of Saint Maron, Sydney & SS (No 3) [2024] NSWSC 943

Hearing dates:

14 – 18 August 2023, 17 – 19 June 2024, 21 June 2024

Date of orders:

1 August 2024

Decision date:

01 August 2024

Jurisdiction:

Common Law

Before:

Elkaim AJ

Decision:

1. Judgment for the plaintiff against the first and second defendants, jointly and severally, in the sum of $1,480,251.65.

2. The judgment sum is to be paid into court within 28 days and is to remain in court until further order.

3. The defendants are to pay the plaintiff’s costs of the proceedings.

4. All parties have leave to apply for a different costs order.

Catchwords:

TORTS – intentional tort – claim of historical child sexual abuse – whether the second defendant groomed the plaintiff – whether on balance of probabilities the abuse by the second defendant in October 2005 occurred – held grooming had not been established – held incident of abuse in October 2005 occurred

EVIDENCE – sexual assault – complaint evidence in civil proceedings – delay in complaint – where detail of complaints is generally consistent

EVIDENCE – admissions – civil proceedings – whether letter offering counselling services amounted to an admission – held the letter was not an admission

NEGLIGENCE – vicarious liability – agent and principal – where vicarious liability arises in church context – where second defendant was a Sub-Deacon of the first defendant but not an employee – whether the position of power and intimacy and nature of the second defendant’s acts were connected to his role in the church – where abuse occurred whilst the second defendant was driving the plaintiff home in his car – discussion and application of Bird v DP [2023] VSCA 66 – held the first defendant is vicariously liable for the second defendants actions

DAMAGES – assessment of damages – historical child sexual assault – past and future economic loss – damages by way of buffer – past and future out of pocket expenses – future care and treatment – aggravated damages

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 3B(1), 5B, 18(1)

Evidence Act 1995 (NSW), ss 66(2), 140

Cases Cited:

AA v PD [2022] NSWSC 1039

Bird v DP (2023) 69 VR 408; [2023] VSCA 66.

CCIG Investments Pty Ltd v Schokman [2023] HCA 21

CLH v KAG 2022 BCSC 994

Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm)

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32

Hollis v Vabu Pty Ltd (2001) 207 CLR 21

Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369

SR v Trustees of the De La Salle Brothers [2023] NSWC 66

TT v The Diocese of Saint Maron, Sydney & SS [2023] NSWSC 958

Category:

Principal judgment

Parties:

TT (Plaintiff)
The Diocese of Saint Maron, Sydney (First Defendant)
SS (Second Defendant)

Representation:

Counsel:
Mr B Kelleher SC (First Defendant)
Ms A Campbell (First Defendant)
Mr B Wrench (Second Defendant)

Mr T Hall (Plaintiff)

Solicitors:
The Law Offices of Professor Dion Accoto (Plaintiff)
Wotton Kearney (First Defendant)
Murphys Lawyers (Second Defendant)

File Number(s):

2018/347128

JUDGMENT

1. The plaintiff was born in 1990 in Australia. His family were and are devout members of the Maronite Catholic Church.

2. The first defendant is The Diocese of St Maron, Sydney which encompasses the St Joseph’s Maronite Catholic Church in Croydon (‘St Joseph’s’ or ‘the Church’).

3. The second defendant, SS, is a Priest. He came to St Joseph’s from Lebanon where he had been ordained as a Sub-Deacon on 8 December 2001. He was then ordained as a Deacon at St Joseph’s on 14 May 2005, and as a Priest on 6 May 2006.

4. The plaintiff alleges that he was sexually abused by the second defendant, beginning when he was 13 or 14 years of age and continuing through to a particular incident in October 2005.

5. The most recent pleading by the plaintiff is an amended statement of claim filed on 22 October 2021. In relation to the first defendant, this pleading states:

“32. The first defendant owed a duty to take reasonable care for the safety and welfare of the plaintiff when the plaintiff was engaged in church activities.

33. The first defendant breached its duty of care to the plaintiff as follows:

a) by reason of the failure of the first defendant to take reasonable care for the safety and welfare of the plaintiff, the plaintiff was subjected to a risk of harm, namely that of being sexually assaulted by the second defendant.   

b) the risk of harm was foreseeable because it ought to have been known to the defendant.”

6. At [47] of the amended statement of claim the plaintiff alleges that:

“Additionally, or alternatively, the first defendant is vicariously liable for sexual abuse by the second defendant and the injury, loss and damage caused to the plaintiff.”

7. The allegation against the second defendant is one of direct sexual assault upon the plaintiff.

8. The plaintiff claims that he was psychiatrically injured by the conduct of the defendants. The heads of damages which he claims are non-economic loss, past and future economic loss, past and future medical expenses, and past and future domestic care. The last head, domestic care, was the subject of overall objection, the defendants having only been given notice of the claim on 4 August 2023.

9. As far as the applicable law is concerned, the parties agreed that the plaintiff’s allegations in negligence against the first defendant fall under the Civil Liability Act 2002 (NSW) (the CLA).

10. The allegations of sexual assault against the second defendant, including the assessment of damages, are to be decided at common law which would, in turn, encompass any vicarious liability of the first defendant. The only part the CLA would play is that there would not be an entitlement to interest on damages for past gratuitous domestic assistance (ss 3B(1) and 18(1)).

11. Both defendants denied the plaintiff’s allegations, saying that the sexual abuse never occurred. The defendants also challenged the extent of the plaintiff’s damages’ claim.

12. The second defendant, SS, was legally represented. His lawyers took little part in the case, appearing more in a protective capacity, especially when their client was giving evidence. The second defendant was actually called to give evidence by the first defendant. The second defendant was aware of the date for final submissions but took no part. I have assumed the second defendant has, to the extent applicable, adopted the submissions made by the first defendant.

13. I was informed, and there is reference to it in the tendered material, that the second defendant had gone to trial before a judge and jury in the District Court in May 2016 in relation to the plaintiff’s allegations of sexual abuse. He faced a single charge of assaulting the plaintiff, and at the time committing an act of indecency upon him in circumstances of aggravation. The charge related to the incident in October 2005 that I have referred to above. The second defendant was convicted and sentenced to a term of imprisonment. On 7 February 2018 the Court of Criminal Appeal set aside the conviction and entered a verdict of acquittal.

14. The parties recognised that the results of the criminal proceedings, both at first instance and on appeal, were not relevant to my consideration of the matter, which has proceeded on the basis that the plaintiff must prove his case on the balance of probabilities, rather than beyond reasonable doubt.

15. In relation to the standard of proof I think it appropriate to set out the following comments of Kiefel CJ, Gageler J (as his Honour then was) and Jagot J, after setting out s 140 of the Evidence Act 1995 (NSW), in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, at [57]:

“Section 140(2)(c) of the Evidence Act reflects the position of the common law that the gravity of the fact sought to be proved is relevant to "the degree of persuasion of the mind according to the balance of probabilities". By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that "the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved".”

16. Unfortunately, the hearing needed to be conducted in two parts. This arose because of the plaintiff’s application, made on the second day of the hearing, to extend his quantum claim to include damages for gratuitous domestic care. For reasons that I gave on 15 August 2023 (TT v The Diocese of Saint Maron, Sydney & SS [2023] NSWSC 958), I allowed the application, but also adjourned the matter to permit the collection of expert evidence on the care claim. The adjournment came after taking as much evidence as was otherwise possible.

17. One of the regrettable aspects that arose from the application was that it was necessary to suspend the plaintiff’s cross-examination until the care claim could be properly dealt with. Also regrettable was that the matter could not proceed on the adjourned date of 20 November 2023 because the plaintiff’s solicitor (and advocate) fell seriously ill. The matter then resumed on 17 June 2024. Accordingly, the plaintiff’s evidence was taken both at the commencement of the hearing and also when the matter resumed on 17 June 2024.

18. I intend to go through what I consider are the important aspects of the evidence and then turn to the liability and damages questions that need to be answered. This course will involve some repetition when I refer back to parts of the evidence to answer the questions. I will make some findings in the course of commenting on the evidence.

The evidence

19. The plaintiff’s evidence was made up of a statement (Exhibit A), some additional oral evidence in chief, cross-examination, and re-examination. I do not propose to repeat every aspect of Exhibit A, although I think it important to set out what the plaintiff stated about the abuse at [21]-[27] of the statement:

“To the best of my recollection the first time something happened with [SS] was when I was attending the Maronite church retreat. I was about 13 or 14 years old. I remember waking up during the night to go to the kitchen and [SS] appeared. He took me for a walk outside and we sat in a grassy area between large rocks. While we sat on the grass [SS] held my hand then put his other hand on my penis on the outside of my clothing. This is the first time I recall any physical touching by [SS]. This at the time felt like an innocent quick half of a second and it didn't seem wrong at the time for me and him.

At the same retreat I recall a group photograph being taken, [SS] had his hand on my bottom while it was being taken.

After the retreat whenever I was in [SS’s] car, I always sat in the front passenger seat and [SS] would place his hand on my inner thigh. This happened several times. I was only ever in [SS's] car in relation to church activities. He was either dropping me home or driving me to a church related activity.

On one occasion in the car [SS] grabbed my hand and placed it on his penis over his clothes. I pulled my hand away. I remember trying hard to pretend these things didn't happen and I'm crazy. He was smart and knew internally I was soft, and I wouldn't speak up.

After the retreat [SS] often greeted me with a hug and then touched my crotch area. He would then say in Arabic 'kayf el baydoutt'. In English this translates to 'how are your balls?'. This usually occurred at St Joseph's church when we were preparing for mass.

[SS] would often stroke my bottom, wink at me, and blow me kisses. I recall having mixed feelings of confusion and feeling special. [SS] was very friendly. He made me feel special, like the chosen one. He would hold my hand, grope my bum, put his hand on my inner thigh and over my clothes playfully tickle my testicles. I normalised this behaviour but did not tell anyone.

When I was around 14, 15 years of age I recall being in the tabernacle of the church getting ready for 7pm mass and [SS] grabbed my penis. I smiled and moved away.”

20. In October 2005, the Church was the host for a ‘Relics Tour’ which lasted a few days and nights. The Plaintiff said in his statement that the following occurred during the tour, at [34]-[41]:

“[SS] asked my mother on the final night, more than once, if I could spend the night with him at the church, but my mother objected. What I mean by this is that, at the end of the mass, he would try and convince my mum. On the night I ended up sleeping, it was me who actually begged my mum to sleep there.

By the final night I was exhausted, and I was literally falling asleep as I stood. I waited for [SS] because he was going to give me a lift home. This was not uncommon, and my mother knew that I was with the priest, and someone would make sure l got home. My family were at the church every day, but they did not stay all night.

We closed everything up. [SS] and some other committee members were going to get some breakfast before [SS] drove me home. We frequently went to a Lebanese bakery that was close by. I cannot remember the name of it, but I remember the place we went to was closed. It was decided that we would go to the nearest McDonald's at Croydon on Parramatta Road. I remember we were trying to get breakfast before [SS] took me home. It was only me and [SS] in the car.

[SS] drove a dark green or dark blue RAV 4. I was in that car all the time. So that morning was no different other than I was really exhausted, almost dead to the world. We were driving for breakfast and suddenly he pulled over. At this stage I was seated in the front passenger seat. I had my seat just a little back and had fallen asleep.

When I woke up it was because I flinched as I felt pressure on my genital area. I froze and didn't want to open my eyes. I was scared. On a personal level, l was there but I was not there. What I felt was [SS] with his hand in my pants and he had a hold of my penis. The pants I was wearing had a shoestring at the top he couldn't get easy access or movement, he removed his hand from inside my pants and then grabbed hold of my penis from over the top of my trousers. I hate to admit this, and I felt sick, but my penis was aroused, and it was hard. My eyes were shut so I started squinting and could see [SS] with his hand leaning in towards me.

[SS] did not say anything. I could hear him breathing heavily as his hand went inside my pants again. He kept a tight hold of my penis and started to rub it up and down. He did this with his right hand. [SS] continued to do this until I ejaculated. I ejaculated all over the inside of my pants.

Nothing was said and he eventually stopped when he realised, I had ejaculated. He pulled up and sat back in his seat. I eventually opened my eyes completely and saw that we had ended up back on a street just past Acton Street, Croydon. [SS] had pulled over in a street just around the corner from the church. I don't know whether [SS] knew I was awake or not during the incident, but I know l was a statue, and my heart didn't even beat.

After he finished, with his hand he wiped himself on my pants on my thigh area because I had ejaculated inside my pants, and they were wet down the front.”

21. The cross-examination of the plaintiff, at least during the hearing in August 2023, concentrated on the background to the plaintiff’s involvement at the church, on his interactions with various persons in the church (including the second defendant) and a general scrutiny of the allegations being made by the plaintiff.

22. When the matter resumed on 17 June 2024, the cross-examination extended to the specific allegations of abuse that had been made by the plaintiff. Particular emphasis was placed on the events of the final day of the Relics Tour when the plaintiff alleges that, in the early hours of the morning, he was driven in the second defendant’s motor vehicle to a suburban location where he was abused.

23. The cross-examination was also directed at the plaintiff’s pre-abuse circumstances and those that he asserts have existed since the abuse. In general terms, the plaintiff’s allegation is that he was a happy young boy before the abuse, doing well at school and without any psychological problems. Since the abuse, on his case, he has had significant psychological problems which now leave him in a situation where he frequently requires rehabilitation, is entirely dependent on his mother for care and has become a gambling addict and a frequent user of alcohol and drugs.

24. In order to combat the plaintiff’s allegations about the changes he has experienced, the first defendant sought to maximise the plaintiff’s bad behaviour before the abuse and normalise his behaviour since the abuse. While the first defendant cannot be criticised for attacking all aspects of the plaintiff’s allegations, there was a degree of inconsistency in the approach of asserting the plaintiff was badly behaved before the abuse but well-behaved after it.

25. As a general statement, the plaintiff was an unsatisfactory witness. He was often argumentative, sometimes rude to the cross-examiner and frequently asserted that he could not remember many of the events that were put to him.

26. An unsatisfactory witness is not necessarily a dishonest witness. This is particularly the case where a witness is giving evidence about historic allegations and has since been plagued, whatever the cause, by addictions and the frequent and overconsumption of drugs and alcohol.

27. At the resumption of his evidence the plaintiff gave this evidence:

“Q. Equally it's part of your case that you've had a significant problem with drugs and alcohol since that time?

A. Definitely.

Q. Mainly marijuana, correct?

A. Over the last eight to ten months it's actually changed. I've been doing a lot of ice lately and …”

28. It is impossible for me to say if the plaintiff was under the influence of ICE or any other drug while he was giving evidence, but he certainly displayed an agitation and irritation that was perhaps consistent with consumption of ‘something’. One of the signs displayed by the plaintiff while in the witness box was a significant shaking of his legs. I note that Dr Klug refers to a “tremor of his legs” as being a characteristic of panic attacks.

29. The first defendant made much of minor inconsistencies in the plaintiff’s evidence. For example, different versions, as to detail, were put to the plaintiff in regard to complaints made to various persons. The plaintiff, again as an example, said that he and the second defendant had not gone to the bakery to discover it was closed, or to McDonald’s. However, he said to BT:

“I was sleeping at the church of the last night of the Relics, and it was early in the morning. [SS] told me that I’m taking you to get breakfast. I entered his car and we arrived at the location for breakfast, but it was closed. So, he said I’ll take you back to the church. While we were driving back, I fell asleep.”

30. The plaintiff told NB:

“(The plaintiff) said when he was in [SS’s] car on the way to get some food, he had fallen asleep. (The plaintiff) told me he woke up because [SS] was rubbing his private parts over his pants, but he pretended to be asleep.”

31. The history given to UT was:

“[SS] was taking me to breakfast in his car in the early hours of the morning. I was sleeping and he pulled over to the side of the road not far from the Church and McDonalds. I felt [SS’s] hand on my penis, and he began to masturbate me.”

32. The complaint made to Monsignor TN has the plaintiff being abused at McDonald’s, presumably in the car park:

“(The plaintiff) explained that while at McDonald’s he fell asleep in the front seat of the Priests car. (The plaintiff) said to me that he was woken up, but remained lying back still, when he felt a hand on his thigh … .”

33. It is important to note here that this being a civil proceeding, complaint evidence might be viewed in a different manner to a criminal proceeding. Section 66(2) of the Evidence Act 1995 (NSW) does not apply. However, no objection was taken to the complaint evidence. As just seen, the complaint evidence was used as a tool by the defendant to attack the credibility of the plaintiff. On the other hand, the complaint evidence can also be used by the plaintiff to show a consistency of complaint by the plaintiff and in turn can amount to some proof of what the plaintiff alleges. No limitation was sought by the defendant on the use to which the complaint evidence could be used.

33. This was the approach taken by Lee J in Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369. His Honour stated at [549]-[550]:

“This is a civil proceeding and so s 66(2) EA, applicable to complaint evidence, is not relevant. In this civil case, no objection was made as to the admissibility of any evidence of complaint or alleged prior consistent statements made by Ms Higgins, and I was not asked to exercise my discretion to limit the use of any such evidence under s 136 EA.

Hence the evidence of her contemporaneous representations to Ms Brown, Mr Payne, Mr Dillaway, Major Irvine, Mr O’Connor and, as we will see, the AFP on 1 April, can go beyond merely putting other post-incident conduct in proper context but can also be used to show consistency of conduct by Ms Higgins, some proof of the fact of what was asserted in the representations; in this way, the previous representations are relevant to the reliability of Ms Higgins in this aspect of her evidence.”

35. I agree that the complaint evidence contained differences in detail. However, the complaints were not all made at the same time and were sometimes made some years after the incident. I do not think the inconsistencies necessarily suggest dishonesty or fabrication. Identical complaints would have been hard to accept.

36. I also think it relevant that the abuse complained of, while obviously reprehensible, is not as egregious as might have been the case. A person making an allegation of sexual abuse could potentially go a lot further, in details of the abuse, than the description given by the plaintiff. I stress that this is no more than a minor factor to be considered.

37. There is another ‘pseudo-complaint’ which I think is relevant. This is the suicide note written by the plaintiff to his parents. It is not in evidence, but Dr Klug refers to it as follows:

“I note the suicide note written by (the plaintiff) which makes reference to the relevant abuse in the past.”

38. The plaintiff was also attacked on the simple impossibility of his allegations. In relation to grooming the following points were made:

1. The plaintiff had not made any allegations of grooming conduct other than in his statement in 2023 (Exhibit A). In particular, they were not included in his statement to the police in 2013 nor did he give evidence of them during the criminal trial. Importantly the statement (Exhibit 1D25), states:

“The actual incident was a one off incident.”

2. The plaintiff’s assertion that he only recalled the grooming incidents later, around 2016 or 2017, following eye movement desensitisation at a rehabilitation centre in Thailand was “uncompelling”. One of the difficulties with this assertion is that the plaintiff saw Dr Klug on 2 July 2018 and did not give a history of the pre-October 2005 incidents. In fact, the history included this statement:

“He enjoyed a secure childhood with good parenting and no other history of exposure to violence or abuse.” (Emphasis added)

3. The plaintiff’s allegations referred to him being in the second defendant’s motorcar on several occasions when the second defendant would “place his hand on my inner thigh”. I understand these allegations referred to a period when the plaintiff was 13 or 14 years old, therefore in 2003 or 2004. The difficulty is that the second defendant was on a learner’s licence from 26 March 2004 until 28 September 2004 and then on a provisional (‘Red Ps’) licence until 23 November 2005. The rules regarding learner drivers would have required the second defendant to have a licensed driver (an adult) in the motor vehicle with him.

4. Numerous incidents such as touching the plaintiff’s bottom or blowing him kisses were most unlikely because they were said to have occurred in locations where there would have been other persons about. These actions are fleeting and conceivably could occur notwithstanding the presence of other people.

5. The very first incident, said to have occurred at a retreat was unlikely because it was alleged to have occurred in a kitchen, separate from the sleeping area, and where it would have been most surprising that the second defendant was present.

39. I think the most important factor of those incidents just listed relates to the police statement. Referring to the October 2005 incident as a “one-off incident” is a plain statement that no other abuse had taken place. I would also add to this category of complaint, the discussion with Monsignor TN which occurred on 1 October 2013. A comprehensive record of the complaint was made (Annexure A to Exhibit 1D13) and contains no reference to any misconduct prior to October 2015.

40. I cannot discount the possibility of treatment releasing memories, but there is no expert evidence on this point and there is no evidence from the rehabilitation centre in Thailand to corroborate the emergence of the memories.

41. I intend to find that the plaintiff has not established the allegation of grooming. This conclusion might be seen as affecting the plaintiff’s credibility in respect of the October 2005 incident. I think that is an important element but not one that necessarily destroys his credibility. I think it is as likely that he invented the grooming as that the memory of it as a reconstruction which the plaintiff may genuinely believe. The latter suggestion becomes more credible bearing in mind that the plaintiff’s apparent memory arose during treatment, perhaps subconsciously affecting his belief in what he perceived as a memory of actual events.

Plaintiff’s functioning pre-abuse

42. I will now turn to the evidence concerning the plaintiff’s pre-abuse functioning, in particular at school. The plaintiff stated that “before the assault I performed well at school and had good grades”. The plaintiff was taken to his school records which indicated many acts of bad behaviour, leading to suspensions and a threat of expulsion. The plaintiff said he was a “good boy” before the abuse although he was also “cheeky”. The contents of the school reports suggest the plaintiff was not the model, if perhaps a little mischievous, student that he suggested. I have the impression the plaintiff, while perhaps achieving some reasonable grades, was also disruptive and often unruly. The plaintiff did suggest that perhaps the bad behaviour was somehow connected, subconsciously, to the grooming that he was being subjected to. As will be seen below, there is some support for this suggestion in the expert evidence.

43. Notwithstanding this support, the difficulty faced by the plaintiff is that the unruly behaviour highlighted by the reports precedes the alleged grooming. According to the amended statement of claim the grooming started in 2002. The plaintiff’s evidentiary statement says it started when he was 13 or 14 years of age. The starting date, on this basis, would be in the second half of 2003.

44. With these dates in mind, it is necessary to look at the reports. They are from Christian Brothers’ High School Lewisham (Exhibit 1D21). The plaintiff was in Year 5 in 2000. The reports for this year do have some positive elements. For example, he did quite well in literacy and very well in numeracy. But there was also this report of unsatisfactory conduct:

“(The plaintiff) has been thoroughly warned about acceptable behaviour, however he has consistently chosen to ignore it. I am very disappointed with (the plaintiff’s) attitude at the moment. Considering (the plaintiff) had a formal detention last Thursday, then I don’t think that he is learning his lesson.”

45. Again in 2001 there are some positive comments, but also some which contain reservations. At the end of the first semester his class teacher wrote:

“(The plaintiff) is a student who enjoys participating in all aspects of his schooling. He enjoys the social interactions and generally gets on well with others. (The plaintiff) is always happy to participate in class activities and discussions and I know that whatever the task he will give it a go.

In overseeing (the plaintiff’s) progress he shows signs of having a range of abilities that with nurturing and challenge will develop into unique talents. He has a great capacity to learn and to comprehend and often makes valuable contributions to class discussions. He demonstrates an ability to apply a range of thinking skills and can deal with abstract concepts.

The challenges for (the plaintiff) in his schooling are to be able to remain focused on his work and not to succumb to the temptation of being distracted. He also needs to take greater care in the preparation and presentation of his work. Far too often he doesn’t plan and organize his ideas and then he rushes his work decreasing his chance to fully comprehend and utilize his learning to its greatest potential.

If (the plaintiff) can apply himself fully to working harder at organizing and presenting his work then I believe that he will flourish as a student and establish himself in preparation for next year.”

46. In the first semester of 2002 the plaintiff seems to have performed slightly under the average for his class with comments ranging from “A capable student who has earned this pleasing result” to “More application is required for improvements in progress or results”. Notably in Catholic studies the plaintiff was “commended for his participation in class discussion”.

47. An interim report in Term 1 of 2002 has the plaintiff achieving satisfactory academic progress but in every subject except “PH/H/PE CORE” his behaviour is in the category of “Improvement Needed”.

48. A further interim report in 2003 suggests the plaintiff had a generally satisfactory academic progress but his behaviour again often fell into the “Improvement Needed” category. For example, his history teacher wrote:

“(The plaintiff) is capable of making a positive contribution to every lesson. However (the plaintiff) has a problem with his attitude and behaviour. He is often late to class and is easily distracted from his studies. The (plaintiff) is often very argumentative when corrected for disrupting the lesson.”

49. In May 2004, a teacher asked the principal to take action against the plaintiff after she had asked him to sit down, and he responded:

“I think you should shut the f*** up.”

50. In the same month a different teacher (in religious studies) made a note that:

“(The plaintiff) was very rude and insolent. He was displaying silly behaviour … He refused to leave the room. He was verbally abusive - challenging me.”

51. In November 2004 the plaintiff’s parents received a Student Demerit Slip which stated:

“Constant complaints from teachers about poor behaviour in class, disobeying instructions, not having a diary and rudeness, not working in class out of uniform again.”

52. The plaintiff’s parents responded “(the plaintiff) said I am very sorry and will not happen again.”

53. On 26 November 2004, in another demerit slip, it is said that the plaintiff:

“Put a piece of paper into overhead projector and set fire up.”

54. The plaintiff’s parents responded: “(The plaintiff) is sorry and will do better next year.”

55. In February 2005 the deputy principal wrote to the plaintiff’s parents stating:

“Your son (the plaintiff) was involved in an incident last week in which he engaged in unacceptable behaviour whilst on detention, which involved the use of threatening language to a teacher.”

56. On 4 March 2005 the principal wrote to the plaintiff’s parents:

“Your son (the plaintiff) was involved in an incident yesterday in which he engaged in unacceptable behaviour whilst at sport, which involve the use of highly inappropriate language.

I am writing to advise that he has been suspended from school effective immediately and has been withdrawn from classes today….

(The plaintiff) must understand that such instances of poor judgment will place his position at Christian Brothers in jeopardy.”

57. On 7 March 2005 a note was put in the plaintiff’s student file about disrespectful behaviour while on a school excursion. The following day the principal wrote to the plaintiff effectively threatening expulsion if the plaintiff’s behaviour did not improve:

“Mr Roberts also made it clear that if you seriously, wilfully or repeatedly breach the promises that you made this morning, then your enrolment at CBHS Lewisham may be terminated immediately.”

58. The school reports obviously contradict the plaintiff’s assertions about his pre-abuse performance at school. The plaintiff’s mother, in her statement (Exhibit L1) said the plaintiff was “smart and he was honest, and he showed respect.” The latter attribute seems to have often been absent at school. The plaintiff’s mother added that “He was a good student, and he was definitely loud and happy.” He certainly seems to have been “loud and happy”, but perhaps not as good a student as she suggests.

59. The overall impression I have from the school reports is that the plaintiff and his mother have somewhat glossed over the plaintiff’s behaviour before October 2005 and that the inappropriate behaviour extends to a period well before any possible act of grooming by the second defendant might have taken place.

Plaintiff’s conduct since leaving school

60. In relation to the plaintiff’s conduct since leaving school, his case is that since losing his job in 2017 with a security firm (SNP) he has not been able to work, he has found it difficult to leave the home, he has been wholly dependent upon his mother, and he has been dependent on assorted persons for finances.

61. The plaintiff said that when he did go out, he was in a “disassociated state”, sometimes effectively wandering, or driving, in a meandering fashion without purpose. He said he never wore a seatbelt because of the abuse that he had suffered while being in the motorcar with the second defendant. He said he was frequently stopped by the police for speeding and not wearing a seatbelt. It was put to him that this evidence was inconsistent with there being only one recorded charge of failing to wear a seatbelt in his driving record. He said this was because he had managed to persuade the police not to proceed on the seatbelt charge. They sympathised with him after he told them the reason for his not wearing the seatbelt.

62. Another apparent inconsistency highlighted by the first defendant was the plaintiff’s assertion of uncontrolled defecation. He said this happened frequently. It was pointed out to him that none of the institutions where he had spent time had any record of this condition. The plaintiff responded that the institutions provided a different environment than his bedroom and the Valium he was prescribed at the institutions assisted in preventing this condition. He said:

“Q. I want to put to you that on not a single occasion that you were in one of those facilities is there a record of you soiling the bed at night, is there?

A. Definitely not a record but it's definitely happened plenty of times. And I might add, I'm - I think Valium helps a lot with my brain and helping me with sleep and they did put me on - she tried me on a lot of crazy medications, which I kept refusing as much as I could but it's definitely a different environment than my bedroom.”

63. Somewhat surprisingly, the plaintiff does not receive any government assistance by way of social security payments or a disability pension. He said this was because he could not be bothered with the questions in the application process. I found this answer to be almost extraordinary, bearing in mind his persistent need for money for his gambling addiction and the purchase of illicit drugs. This was an example of the plaintiff’s obviously illogical evidence perhaps supporting his case rather than contradicting it.

64. The plaintiff’s mother confirmed his attitude to obtaining government assistance.

65. In respect of work, it was put to the plaintiff that he had received many supportive references and he had lasted in different places of employment for far longer than he had suggested. The first defendant posed the question of how he could obtain good references against his assertions that he could not hold a job for very long and was frequently dismissed for bad behaviour. The plaintiff responded that he would lie in respect of employment in order to obtain other jobs and that he was effectively bluffing his way into a new prospect of work.

66. The plaintiff’s assertions that he was housebound and entirely dependent on his mother for care were tested by outlining to him the various trips that he had undertaken, usually alone, and to distant destinations. The plaintiff was also cross-examined in detail about his expenditure, as revealed in the transactions with a CBA account.

Plaintiff’s travels

67. Starting with travel, the plaintiff accepted that he had travelled alone but said that he was generally travelling to a destination where he would be met on arrival and farewelled by a relative.

68. Exhibit 1D39(B) is a schedule of the plaintiff’s overseas travel. The first trip is to Lebanon in June 2009 for a month. The plaintiff would then have been 18 years of age. There are then 16 more trips, the last having been between 25 April 2024 and 13 May 2024 when the plaintiff went to Bali. The travel to Lebanon involved staying with relatives. During his two trips to the United States the plaintiff was either accompanied by family or stayed with his sister at the convent in Massachusetts. It is unclear why, and for how long the plaintiff visited Dubai and the United Arab Emirates. These may have been short trips associated with travel to other places. The plaintiff’s trip to Italy in May 2017 was to attend a friend’s wedding. I note that three days after returning from Italy the plaintiff was admitted to Concord Repatriation Hospital for four days.

69. There are seven trips to Thailand, presumably associated with rehabilitation treatment at ‘The Cabin’ Chiang Mai. There are some discrepancies, however. For example, the plaintiff travelled to Thailand from 3 June to 5 October 2017. His admission at The Cabin was from 5 July 2017 to 4 October 2017. He seems to have been in Thailand for about a month before going into the rehabilitation centre. But according to Exhibit 1D39(A), the plaintiff was in Concord Repatriation Hospital from 20 to 27 July 2017, a period during which the schedule of plaintiff’s travel (Exhibit 1D39(B)) suggests he was in Thailand. I note from the bank records (Exhibit 1D34) that on 12 June 2017 a transfer was made to The Cabin on the plaintiff’s CBA card.

70. It is also notable that immediately before leaving for Thailand the plaintiff had been at Concord Repatriation Hospital for a week.

71. The first defendant prepared the schedules of travel and hospital admissions, and no doubt used its best endeavours to ensure they were accurate. As stated, they are not accurate. The records were apparently produced from reliable documents emanating from the Department of Immigration and the various medical facilities. I do not know why there are discrepancies, but I do bear in mind the possibility of inaccuracies especially when having regard to the first defendant’s submissions concerning the plaintiff’s conduct.

72. There were some destinations, such as two trips in 2023 to Surfers Paradise, where the plaintiff was not being chaperoned by family. On the first trip, in February, he flew but on the second trip he drove to Surfers Paradise. The plaintiff said that he had attempted to go away as an act of rehabilitation, but he soon found himself on a “bender”, consuming copious amounts of drugs and alcohol, and gambling.

73. The plaintiff’s gambling seems to be through organisations such as Sportsbet which allow him to place wagers online, probably through an app.

74. The plaintiff seems to receive large sums of money, in particular from his mother. For example, when he was in Surfers Paradise in February 2023, he received $5,633 from her over an 11-day period. I have little doubt that the plaintiff has taken significant advantage of his parents, in particular his mother. He has obviously lied to her about where he has travelled and how he has used the money she has given him. She has unfortunately taken him at his word and not exercised greater control in providing him with funds.

67. I have already referred to Exhibit 1D39(A) which is the schedule of the plaintiff’s in-patient admissions in Australia. There have been 19 admissions between 20 December 2016 up to 6 November 2023. Most of the earlier admissions were to Concord Repatriation Hospital; most of the latter admissions are to St John of God Hospital in Richmond. There is one admission to Kedesh Rehabilitation service, two admissions to Lives Lived Well and one admission to the South Coast Private Hospital. Some of the admissions are fairly short but others are lengthy, such as the admission to St John of God Hospital from 3 June to 10 July 2022. I also note that the plaintiff was admitted to Concord Hospital on 23 March 2022 and then discharged to St John of God Hospital on 28 March 2022 where he remained for a month.

68. I observe here that the normality of the plaintiff asserted by the first defendant, through the plaintiff’s daily habits and travel, are significantly at odds with his medical history and in particular his frequent admissions to psychiatric and rehabilitation institutions. As seen above, a trip to Italy for a wedding may be seen as an act of significant independence but must be weighed against the plaintiff being admitted to hospital three days after his return.

Other witness evidence

77. The conclusions I have just expressed were reinforced during the oral evidence of the plaintiff’s mother (KU). KU was pressed in cross-examination to retract parts of her written statement (Exhibit L2) the suggestion being that the plaintiff is far more active and independent than asserted by both KU and the plaintiff. KU accepted that the plaintiff did go out from time to time, that he did visit shops and food outlets, but she was adamant that he preferred to be at home and spent most of his time at home. As to his periods out of Sydney, like the plaintiff, KU said that Sydney was a trigger for him and that he was happier, and more capable, outside of Sydney.

78. One of the trips about which questions had been asked, was the plaintiff’s trip to Bali earlier this year. According to the plaintiff he had been accompanied by SU, a relative in the 40 to 50 year age group. KU said there were two relatives bearing the same name, one who was close to the plaintiff’s age and the other who was about 65. The older relative was a real estate agent who KU could not contemplate as having accompanied the plaintiff on a “bender in Bali”.

79. KU was not aware that the plaintiff had gone to Bali; she thought he had gone to Thailand because this is what he told her.

80. KU confirmed the plaintiff’s opinion of his driving ability, stating that he was “reckless on the road”. She was not aware that he had driven to Surfers Paradise in July 2023, and she was clearly kept in the dark by the plaintiff about a lot of his activities. KU knew that her son smoked marijuana, but she did not know about his consumption of ICE. KU often did not know where he was, feeling that if he was away for some days, he was safer because he was outside of Sydney.

81. KU agreed that the plaintiff defecated in his bed from time to time although I had the impression this was not as frequently as suggested by the plaintiff.

82. KU conceded that the plaintiff had problems at school before October 2005. There was a suggestion by the plaintiff and Dr Klug that it was possible that these problems were occurring while he was being groomed by the second defendant. However, the suggestion would be inconsistent with my conclusion that the grooming has not been established.

83. It was put to KU that she had exaggerated her evidence in order to support the plaintiff. I think she was endeavouring to give her total support to the plaintiff, but I did not think she did so dishonestly. In particular I accept that she does provide an average of four hours per day in assistance to the plaintiff and has done so for some years. I also accept that she will continue to do so for as long as she is able.

84. Importantly no challenge was made to KU suggesting that the plaintiff’s complaints about the abuse were not made. KU was however challenged on her assertion about the conversation she alleges occurred on the evening before the abuse. According to her statement the second defendant had said that he would drive the plaintiff home and had added:

“He will be safe with me, you can trust me.”

85. It was suggested to KU that the conversation, in fact the whole incident, had not occurred. The first defendant sought to take advantage, in cross-examination, of the obvious confusion held by KU as to whether or not the plaintiff had slept over at the church on a night previous to the alleged conversation. I am satisfied that KU’s evidence, after clarification, was that the plaintiff had not spent a night at the church before the night (and early-morning) of the alleged abuse.

86. The plaintiff has made two trips to the United States to visit his sister (NU) who lives in Massachusetts. The first trip was with his family. The second, in June 2023, was made alone. NU is a sister in the Maronite Servants of Christ Light Community. She resides in a convent which has cloisters for the sisters upstairs and a guestroom on the ground floor. The guestroom is large enough for a maximum of two persons.

87. The plaintiff resided in the guestroom for about five weeks during his 2023 visit. During this time he tidied his room, although there was a cleaner available for some of the time. The plaintiff went out frequently at night, using an Uber service or he was driven by Sister NU.

88. As with other witnesses, Sister NU was not challenged on the detail of the complaints of abuse made by the plaintiff. Sister NU confirmed that there were three youth groups at the church when she attended, and she had actually taught at one of them. She said she knew KN. He was a teacher of the group for teenagers.

89. Sister NU first went to America in June 2005. She returned a year later. She became friendly with the second defendant she said:

“He was very active and worked hard to get things done in and around the Church. He was friendly towards me. At times he was playful with me.”

90. Sister NU returned to America in 2008. She took her first vows as a nun 2013 and her final vows when she became “married to Jesus” in 2017. She stated that it was in 2013, during a trip to Australia, that the plaintiff told her he had been abused by the second defendant. She said:

“I saw the emotion and tears in his eyes when he spoke to me and knew that it had affected (the plaintiff).”

91. Sister NU was an overwhelmingly impressive and honest witness. The first defendant said that Sister NU gave “compelling and frankly given evidence”.

92. Following the plaintiff’s evidence being suspended, the first witness called was KN. He is a devout Maronite Catholic, who is also a teacher and frequently delivers religious education. In around 2004 and 2005, KN gave talks to young persons on Saturday afternoons at the Church. These talks were often well attended, and KN seemed at pains to stress his contribution to their success.

93. In his statement KN describes an incident in 2011, which the plaintiff submitted, indicated the second defendant’s interest in other males. The incident is described as follows at [9]-[15]:

“I was standing in the Sacristy preparing to give Holy Communion.

[SS] walked into the Sacristy, and he said “Hello”.

[SS] placed his hand on my lower chest and caressed it.

This immediately made me feel uncomfortable and awkward.

[SS] then touched me a second time, near my stomach.

I then felt [SS’s] hand move lower.

I was uncomfortable with [SS] touching me this way and I instinctively pushed his hand away.”

94. KN’s statement also includes some complaint evidence. He states at [24]-[25]:

“After 2005, I did not see (the plaintiff) for many years. The next time I saw him was around 2010. I saw (the plaintiff) outside the Church. We discussed his disclosure relating to [SS].

I said words to the following effect, (the plaintiff), you are an adult now, you should go to the Police if something inappropriate has occurred with [SS]. You should submit your complaint to the Police and then speak to the Bishop as well.”

95. KN stated that he later spoke to Bishop CU and told the Bishop what the plaintiff had said to him.

96. The theme of the cross-examination was to undermine the credit of KN, to suggest that his evidence was biased against the defendants. This was said to arise from the Church hierarchy halting his progress from Sub-Deacon to Deacon. It was suggested to him that he had argued with the Bishop and had become angry about his lack of progress within the Church. He denied any ill will towards the church. He said he remained a devout Maronite Catholic and that he had not progressed because the then attitude of the Church in Australia was not to ordain married men.

97. KN was a loud and sometimes argumentative witness, but I did not think he was dishonest. He clearly valued his involvement with the Church, and I reject any notion that he would act with the intent of harming the Church.

98. The attack on KN’s credit was sought to be substantiated through the later evidence of Monsignor NZ, the first defendant’s Vicar General. According to Monsignor NZ, KN had acted in a violent way during an incident with Bishop BB. Monsignor NZ said he saw KN roughly deal with a gift that had been given to the Bishop (probably a box of cucumbers), rant and rave, and ultimately stomp on some religious garments.

99. KN denied he had acted in this way but did accept that there had been disagreements with the Bishop. As will be seen below, I was generally not impressed with the evidence of Monsignor NZ, but he did corroborate KN’s assertion that, at the time, the Church in Australia was not ordaining married men.

100. Another witness who was subjected to criticism, almost character assassination, from Monsignor NZ, was Father KB. Father KB had worked with the second defendant at St Joseph’s as his assistant.

101. The first statement tendered, as coming from Father KB (Exhibit C1), was unsigned and when read by Father KB was found to have some inaccuracies, leading to the preparation of a second statement (Exhibit C2).

102. In his second statement Father KB says he witnessed the second defendant “running the tips of his fingers along the chin line” of a young man. He also says that he “noticed that on several occasions [SS] was tactile with young men to an extent I considered abnormal”. I asked Father KB what he meant by tactile, and he said he meant that when young men were touched by the second defendant he allowed his hand to linger longer than necessary. He specifically said that the manner in which the second defendant physically interacted with adult males was not normal in either Lebanon or Australia.

103. Father KB records a conversation he had with Monsignor NZ sometime after the second defendant’s conviction but prior to the appeal decision. The conversation was as follows:

“Msgnr NZ: I told [SS] that you are an atomic weapon and that he should use you more in the parish.

Father KB: I found it distasteful the way [SS] kept hugging adolescent males, putting his head on their chest with a beatific smile on his face.

Msgnr NZ: Yes, I have told [SS] about this before, and told him that it is not appropriate”.

104. Monsignor NZ entirely denied the above conversation. His office was two doors away from that of Father KB. He even rejected the possibility of a casual conversation during the workday when the two men might have come across each other.

105. I prefer the evidence of Father KB. I have already made some comments about Monsignor NZ. I do not accept his evidence. He came across to me as an unswerving advocate for the Church, unwilling to countenance the possibility of one of their priests acting inappropriately.

106. Father KB’s statement also contains a conversation with KN, in which he says the latter told him that “on a few occasions, when I was wearing my jibbeh [SS] placed his hand on my genitals.” In his evidence KN did not recall this conversation, or SS placing his hand on his genitals. KN did however refer to SS touching him near his groin so that some confusion may have arisen in precisely what was said as between Father KB and KN. I do not think this inconsistency affects the credibility of either of these two witnesses.

107. Under cross-examination, Father KB said that he had been an assistant to SS and that there was friction between them. He felt that he was not being utilised sufficiently and that there were some issues with the Mass.

108. Father KB agreed that he did not like SS but said he had not made up his evidence and he bore no animus towards the second defendant. Having regard to his conversations with SS I do not find it the least bit surprising that Father KB did not like SS.

109. GT provided a statement (Exhibit D) and was cross-examined. He struck me as a young man doing his best to tell the truth and it seemed to me that he avoided embellishing the case when he had good opportunity to do so. This opportunity arose when he was cross-examined about the celebrations at the Church following the arrival of the Relics Tour from Lebanon in October 2005. It is to be remembered that it was during these celebrations that the plaintiff alleges the incident in the motor car occurred.

110. Under cross-examination, GT said that he too had been given a lift home, on a separate occasion during the celebrations by the second defendant. This fact is not included in his statement. When asked if anything had occurred on this occasion, thus being presented with an opportunity to make allegations against the second defendant, he said nothing untoward had happened.

111. In his statement, GT refers to many occasions when the second defendant would touch him on his thigh and on his leg. He was then about 13 or 14 years of age. He stated at [9]-[11]:

“When [SS] would touch my leg, he would often slide his hand from my thigh area towards my groin. When [SS] did this, I would push his hand away. I pushed it away because his actions made me uncomfortable, and his hand was entering an area where it didn’t belong, that is my genital area.

He will try and run his hand up my thigh during conversations. He would be talking and just do it without hesitation.

[SS] attempted to touch my penis and genitals on occasions. At the time I would push him away with my hands to stop him touching me there. I knew what he was attempting to do, and I knew it was wrong. I didn’t tell anyone as I felt like I could hold my own against it. I just felt I could deal with it myself.”

112. In his statement, GT also describes the complaint made to him by the plaintiff. He says that in about 2006 the plaintiff told him what the second defendant had done. The plaintiff had said:

“We were in his car and [SS] thought I was asleep, and he reached down and played with me until I came.”

113. Under cross-examination GT said he had been an altar boy from time to time, usually on Sundays for the 11:00am mass. GT would attend with his family. GT said the second defendant was a Deacon who was involved in the mass. GT described his duties, which included putting on white robes, lighting candles, preparing wine and water, and lighting incense and placing it in a container. GT said that he would get ready in the same room as the adult officials, and that dressing in a separate room only occurred at a later time.

114. GT said the arrival of the Relics Tour was very exciting. He went to the welcome ceremony where he was an altar boy. The plaintiff also took part. It was at this stage that GT gave evidence about being taken home by the second defendant. He said that the second defendant’s motor car was, he thought, a Daihatsu, it was dark coloured and looked like a RAV 4. Notably, the plaintiff described the vehicle in which he was assaulted as a RAV 4.

115. The first defendant tendered photographs of the plaintiff’s motor vehicle (Exhibit 1D7), a Daihatsu Terios, which appears to be a small SUV vehicle. The plaintiff also tendered photographs of a Toyota RAV 4 (Exhibit K), which to my inexpert observation looks at least similar in style to the Daihatsu.

116. GT was shown photographs to suggest the plaintiff’s continued involvement in church events. This was to counter the suggestion that the plaintiff alienated himself from the second defendant, and the Church, following the alleged assaults upon him.

117. GT said he was still friends with the plaintiff but saw him rarely. I reject any suggestion that his evidence was influenced by his ongoing friendship with the plaintiff.

118. BT was about 13 years old when he attended Bible studies on Saturday evenings at St Joseph’s. The second defendant was his teacher. At about the same time, BT met the plaintiff and they became close friends. They were “passionate” about their religious studies.

119. BT stated (Exhibit E) that he remembered the Relics Tour and thought that “it was around this time that I first noticed (the plaintiff) stopped attending Church altogether.” The plaintiff initially refused to explain his non-attendance, but in about 2005, when in the swimming pool at DU’s house, the plaintiff said:

“I was sleeping at the church of the last night of the Relics, and it was early in the morning. [SS] told me I’m taking you to get breakfast. I entered his car and we arrived at the location for breakfast, but it was closed. So, he said I will take you back to the church. While we were driving back, I fell asleep.

…

When I woke up, I found myself in the side street of the church and I felt his hand on top of my pants on my dick. I was too shocked to move or open my eyes because I couldn’t believe what was happening. I kept my eyes closed. He then started to rub my dick from the outside of my pants. He kept rubbing my dick until I had an erection and kept going until I blew. Then he wiped the cum off his hands on my pants. I kept my eyes closed and I couldn’t believe what was happening. Then he woke me up once we were back in the church, but I was awake the whole time just too scared to move.”

120. The plaintiff then told BT that the abuse was the reason he had stopped going to church. The plaintiff also said that the assault had occurred in SS’s motor car.

121. In about September 2013, after a conversation with UT about a different priest, BT was told to contact the plaintiff to persuade him to disclose what had occurred. BT met the plaintiff, together with UT and NB at the airport where the plaintiff repeated what he alleged had occurred. The plaintiff was convinced to make a report.

122. Under cross-examination BT was asked about being an altar boy and some questions concerning KN. BT said that he had not stayed overnight during the Relics Tour.

123. BT said that the conversation in the pool had occurred after some alcohol had been consumed. However, he stated that nobody was “blind drunk”.

124. NB’s statement is Exhibit F. NB was also a friend of the plaintiff, BT and DU, the latter being the plaintiff’s cousin. NB recalls the plaintiff as an altar boy. He thought the plaintiff “was very religious and was always helping at the Church”.

125. NB remembered the Relics Tour and said that the plaintiff “was there for most of the time”. NB was present at the pool incident described by BT. He heard the plaintiff’s recollection of the events, and he also said that some alcohol was consumed.

126. NB said that after the disclosure the plaintiff, “started to change as a person. He started to gamble, and he would always be playing poker. Sometimes when I would see (the plaintiff) I thought he was off his face”.

127. In 2012 NB spoke to the plaintiff and told him to report the abuse. The plaintiff said he did not wish to do so. “He told me he wanted nothing to do with the Church.”

128. The cross-examination of NB concentrated on events at the church. He also said that although he met the plaintiff at church they went to different schools.

129. Notably, like all the other complaint witnesses, it was never put to him, that the plaintiff had not made the complaint of being abused.

264. Starting with general damages the plaintiff suggested a figure of $400,000. The first defendant suggested $250,000. The difference between the two suggestions probably represents the limits of the appropriate range. Whether the figure should be closer to one end or the other probably depends on the degree to which the whole of the plaintiff’s current condition can be related, or seen as having been caused by, the abuse.

265. The plaintiff says the whole of his current condition is related, including his addictions to gambling and drugs. The first defendant says these addictions are not related and just as likely to have been caused by a pre-existing susceptibility to the addictions. The differing views are well set out in the psychiatric expert conclave reports (Exhibits 1D33(A) and (B)). Dr Klug said this:

“I regard the plaintiff as a profoundly psychiatrically unwell man. Even though I have diagnosed him with various conditions, it is a typical combination evident in adult victims of childhood sexual abuse.

Although there was one incident of abuse which the plaintiff described, it gave rise to severe ongoing stresses for him in his adolescent life. He comes from a very religious family and religion dominated not only family life but the life of the community in which the plaintiff was raised.

Abuse by priests in that situation represent abuse by a person who occupied a great deal of power, influence, dominance and reverence in the plaintiff’s life.

As with virtually all victims of childhood sexual abuse, he did not disclose the abuse to anybody probably because of shame and guilt which he experienced at the time.

Consequently, this one incident gave rise to a severe and complex nexus of ongoing stresses in his life. This combination of trauma-related stresses has given rise to what I regard as a complex post-traumatic stress disorder and his personality-based dysfunction in adult hood as well as his other psychiatric conditions.”

267. Dr Brown responded:

“I reiterate the concerns that I have raised about diagnosing complex post-traumatic stress disorder in an individual who at the time of Dr Klug’s report indicated that there had been one incident of sexual abuse. Although by the time of my assessment of the plaintiff in February 2019, he alluded to a number of other sexual contacts with the priest, I was unable to elicit sufficient history to confidentially assess these incidents as possible further traumas.

…

On the basis of the plaintiff’s high-level emphasis of symptoms and impaired function in day-to-day life, I consider that his presentation had become complicated by his involvement in the legal proceedings.

I did consider that many of the symptoms described by the plaintiff are attributable to his conditions of cannabis and alcohol abuse and a gambling disorder without invoking post-traumatic stress disorder is a relevant diagnosis.”

268. Dr Brown later added:

“I have identified psychiatric diagnoses which I consider are independently arising to any sexual trauma.

…

I have been unable to offer a confident association between the symptoms, conditions and disorders I have diagnosed, namely cannabis and alcohol abuse, a gambling disorder and a chronic depressive condition to the alleged abuse as compared to other factors.

…

In particular, I note that the plaintiff has a number of factors which are likely to have predisposed him towards developing psychiatric disorders as an adult.”

269. Dr Brown identified the following independent factors: anti-social personality traits, sleep apnoea, a motor vehicle accident in which a pedestrian was injured, undiagnosed Attention Deficit Disorder. Dr Brown considered that the plaintiff’s behaviour at school before the abuse is a strong indicator of independent sources of his later problems.

270. In her report of 22 December 2020 Dr Brown did accept that if the abuse had occurred “it would probably have increased the likelihood of SS developing the adult psychological symptoms and conditions he complains of.” She considered the abuse would be “an aggravating factor to his pre-existing level of risk.”

271. The plaintiff, in his statement, gives a description of his “Life Before and After” the alleged abuse.

272. In his oral evidence Dr Klug came much closer to Dr Brown’s view then he had in his reports or in the conclave report. There was this passage of evidence:

“HIS HONOUR: Dr Klug, just on that last point, your view seems to place the current problems squarely at the door of the abuse, obviously assuming that it happened. What do you say about the possibility of there being other factors that could at least have influenced the gambling addiction, or the drug addiction, the depression, all the things other than the post-traumatic stress disorder?

WITNESS KLUG: Yes, I agree that there may very well be other pre-disposing factors from his childhood to those sorts of behaviours.”

273. There is no doubt that the plaintiff has a number of severe psychiatric and psychological problems. These include depression, PTSD, a drug addiction, and a gambling addiction. Other than the PTSD, I do not think I can attribute them exclusively to the abuse, but I can say that, at the least, the abuse made the plaintiff more susceptible to the non-directly related conditions.

274. A good deal was made by the first defendant of the plaintiff’s lifestyle, suggesting through his history of travel and daily activities that he was living a normal life and capable of living an independent life. In my view the evidence does not disclose this scenario. He may travel a lot, but usually to relatives and even when he travelled completely independently, such as the trip to Italy, he was soon in hospital upon his return. The plaintiffs many hospital admissions defy a conclusion of normality leaving him as a very troubled person, albeit one who has had a capacity to work and who can do usual activities like shopping and buying food and driving a car, but certainly not without difficulty and the continuing prospect of a return to hospital.

275. On this basis I think the plaintiff’s figure is closer to the mark and I will allow general damages of $350,000. Interest on half of this amount at 2% over 19 years is $66,500.

276. For past economic loss the plaintiff’s claim is $982,176, apparently based on average weekly earnings from the plaintiff turning 23. The defendant’s suggestion is $275,000. The plaintiff was in fairly steady employment from 2010 until early 2017. His notices of assessment (Exhibit S) for these years reveal an average annual taxable income of $29,983. The income for each year does however fluctuate, the lowest being $3640 for the 2009/2010 year and the highest being $64,901 for the 2014/2015 year.

277. The first defendant accepts that the plaintiff has not had a capacity to work since January 2017 but says that up to that time the plaintiff was working in a manner consistent with what he might have been expected to achieve but for the abuse. The first defendant has calculated that the plaintiff had an average net income of $910 per week during his last three years of employment.

278. There are 391 weeks between 1 February 2017 and 1 August 2024. Using the $910 per week as a guide the result is $355,810. The first defendant says this figure should be discounted because of the contribution of other factors besides those related to the abuse. The first defendant’s figure also includes interest. On the other hand, had the plaintiff continued working it is likely that his income would have increased since 2017 until the present. I think a fair compromise is to allow the $355,810 without any decrease plus a relatively small amount of interest to bring the figure to $400,000.

279. The plaintiff is also entitled to lost superannuation benefits which I calculate at 9% of the net loss. This is $36,000.

280. The plaintiff’s claim for future economic loss is $1,711,418 which is based on average weekly earnings until age 67 less an allowance for vicissitudes. I note the calculation is made on the 3% tables consistent with a common law assessment.

281. The first defendant allows $100,000 for future treatment which is a significant amount and in fact is the same amount sought by the plaintiff. I think this allowance is generous even though the plaintiff will require significant and intensive treatment. However, assuming a degree of success of the treatment, the plaintiff should be able to return to some employment after about 10 years.

282. I think the first defendant’s approach of a buffer is correct, but I do not think the sum is sufficient. If the plaintiff is given 10 years at $1100 per week, on the 3% tables and less 15% for vicissitudes, the result would be $422,433. I think if I allowed $350,000 for future economic loss as a buffer, but also including lost superannuation benefits then this is a fair assessment. It specifically takes into account the possibility that the plaintiff’s inability to work may be the result of his addictions which are not necessarily a product of the abuse.

283. The next head of damages is past out-of-pocket expenses. The plaintiff’s evidence came in after I had reserved my decision. No objection was taken to my receipt of the evidence although the first defendant does not concede any entitlement to any of the amounts claimed. I have marked the out-of-pocket expenses invoices as Exhibit W. The invoices all relate to The Cabin or The Dawn Rehab, both institutions being in Thailand. The invoices total $95,428.57. Based on the terms of the invoice and the receipts for some of them, they all appeared to have been paid.

284. The first defendant does not challenge the validity of the invoices but says that absent evidence of who paid the invoices and whether there is an obligation on the part of the plaintiff to repay the amounts, the claim should not be allowed.

285. The plaintiff’s bank records (Exhibit 1D34) indicate, as did his evidence, that he receives a lot of money from other persons, in particular his mother. His mother was not asked whether she had made any loan type arrangements with the plaintiff although I suspect there would be an expectation that he would pay the monies back if he recovered compensation. I also note that Exhibit W refers to a payment on 18 February 2017 of $8,000 made by the plaintiff’s mother.

286. Nevertheless, the first defendant’s point is well made and there is no evidence of any obligation to repay the rehabilitation invoices. The plaintiff did however say that he was required to pay back $2,200 per month to “people I’ve borrowed off.” He later said he was referring to an “uncle of mine that doesn’t want to be mentioned.

287. I think I can infer from the repayments to the uncle and from the absence of any identified benefactor, that the plaintiff is obliged to repay the amounts spent on the rehabilitation in Thailand. I note that the plaintiff’s parents do not appear to be wealthy. His mother stopped work following an injury and her compensation has been spent.

288. Another factor to be taken into account is that the addictions being treated in Thailand are not necessarily entirely related to the abuse, as propounded by Dr Brown and to some extent conceded by Dr Klug. Taking these matters into account I think allowing $30,000 is appropriate.

289. I have already noted that the plaintiff and first defendant agreed that future treatment should be assessed at $100,000. I will allow that amount.

290. The next head of damage is past gratuitous care, in this case provided by the plaintiff’s mother. The plaintiff claims $65,000 per annum from January 2017 to June 2024. The first defendant says no allowance should be made.

291. The rate used by the plaintiff is $40 per hour. I did not understand there to be any suggestion the rate was unreasonable. The first defendant submitted that no reliance should be placed on the plaintiff’s mother’s evidence because “she was prepared to do and say anything to support her son” and the evidence of Mr Williamson was preferable to that of Ms Curtain. Ms Curtain did not actually assess past care. Mr Williamson said past care should not exceed four hours per week.

292. The first problem with the plaintiff’s claim is that $65,000 per annum exceeds the four hours per day limit which I placed on the claim. I made two separate decisions to this effect.

293. The second problem for the plaintiff is that while I do not think the plaintiff’s mother was so dishonest as to have totally, or effectively, invented a past care claim, I do think there was a degree of exaggeration which does not take into account the plaintiff frequently leaving the house and travelling.

294. I think I should allow Mr Williamson’s formula of four hours per week for the 391 weeks from 1 February 2017 to 1 August 2024. At $40 per hour the resulting figure is $62,560. I have not discounted this amount for periods spent in hospital to reflect a degree of compromise because there are likely to have been times when more than four hours per week was provided by the plaintiff’s mother.

295. Turning to the future, the plaintiff intends to spend six months in South Africa for rehabilitation and then to receive further treatment, all of which will hopefully enable him to live an independent life. I think I should take a roughly similar attitude to that in respect of future economic loss, that is to make an allowance for four hours per week for 10 years. I will also defer the 10 years for one year to take into account the plaintiff gaining into rehabilitation shortly after he receives his funds.

296. At $40 per hour for four hours per week for 10 years on the 3% tables, but then deferred for one year, the calculation is 40 x 4 x 451.8 x .971 = $70,191.65.

297. The last head of damages to be considered is aggravated damages.

298. In AA v PD [2022] NSWSC 1039, from [126] Chen J summarised the principles for the awarding of aggravated damages at [126]-[128]:

“Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). They are awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1987] HCA 47. That is, they are awarded when the harm done by the wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40; State of New South Wales v Abed [2014] NSWCA 419 at [231] (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing). The entitlement to aggravated damages therefore turns upon establishment of these elements.

The defendant’s conduct

In order to secure an award of aggravated damages, typically (but not invariably) there must be “conscious wrongdoing in contumelious disregard of another’s rights”: Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70 at [14] (Gleeson CJ, McHugh, Gummow and Hayne JJ). In State of NSW v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [138] (Hodgson JA, Sheller JA and Nicholas J agreeing) (‘Riley’), explained that whilst the presence of malice was not essential to ground an award of aggravated damages, and gave some guidance on the character of the defendant’s wrongful conduct necessary to support such an award:

“Conduct may be high-handed, outrageous, and show contempt for the    rights of others, even if it is not malicious or even conscious wrong-   doing. However, ordinarily conduct attracting exemplary damages will    be of this general nature, and the conduct must be such that an award    of compensatory damages does not sufficiently express the court’s    disapproval ...”

Injury to feelings

As aggravated damages, like compensatory damages, are directed towards injury to (or hurt) feelings, the Court must take care not to “double-count”.  This is particularly relevant in a case whether the injury relied upon to justify an award of damages is psychiatric, rather than physical, injury. This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach; that is, an award of so much as is necessary to bring the damages up to the upper end of the available range:Riley at  [131]-[133] (Hodgson JA, Sheller JA and Nicholas J agreeing); State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 at [95]-[96] (Sackville AJA, Beazley and Macfarlan JJA agreeing).”

299. I have already mentioned the trust that was imparted to the second defendant by the plaintiff’s family, and in fact the community which included a number of parents. The abuse was a “contumelious disregard” of this trust. In addition, the abuse was attended by the humiliation felt by the plaintiff as well as the shame which prevented him from disclosing the abuse to any adult for some years. At the same time, I am aware that the general damages I have awarded are significant and I must avoid double counting. For these reasons I think the award of aggravated damages should be $15,000.

300. This is a table of the damages I have assessed:

General Damages	$350,000.00
Interest on general damages	$66,500.00
Past economic loss	$400,000.00
Past lost superannuation benefits	$36,000.00
Future economic loss	$350,000.00
Past out-of-pocket expenses	$30,000.00
Future treatment	$100,000.00
Past gratuitous care	$62,560.00
Future care	$70,191.65
Aggravated damages	$15,000.00
Total	$1,480,251.65

301. A final matter to be considered is whether there should be an order that the plaintiff’s judgment sum not be given to him directly. It seems to me that a person with a gambling addiction and a drug addiction will take very little time to disperse the funds. I think it appropriate for the verdict sum to be paid into court and for the parties to then obtain such evidence as they wish in order to guide the path of the funds.

Orders

302. I make the following orders:

1. Judgment for the plaintiff against the first and second defendants, jointly and severally, in the sum of $1,480,251.65.

2. The judgment sum is to be paid into court within 28 days and is to remain in court until further order.

3. The defendants are to pay the plaintiff’s costs of the proceedings.

4. All parties have leave to apply for a different costs order.

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Amendments

09 December 2024 - Added Mr B Wrench for the Second Defendant to Cover Sheet.

Changed date of Hearing on Cover sheet from 14 - 25 August 2023 to 14 - 18 August 2023.

Decision last updated: 09 December 2024