Waks v Cyprys
[2020] VSC 44
•17 February 2020
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2013 01744
| Menahem Waks | Plaintiff |
| v | |
| | Defendants |
---
JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 September 2019 |
DATE OF JUDGMENT: | 17 February 2020 |
CASE MAY BE CITED AS: | Waks v Cyprys & Ors |
MEDIUM NEUTRAL CITATION: | [2020] VSC 44 |
---
ASSESSMENT OF DAMAGES – Common law damages - Childhood sexual abuse – Institutional abuse - Ongoing psychiatric and/or psychological consequences of abuse – General damages for pain and suffering, loss of enjoyment of life – Special damages for loss of earning capacity and medical expenses – Concurrent tortfeasors Baxter v Obacelo (2001) 205 CLR 635 – Earlier abuse by different tortfeasor - Malec v JC Hutton Pty Ltd (1900) 160 CLR 638 – Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 – Smith v Gellibrand [2013] VSCA 368 - No award for aggravated and exemplary damages against perpetrator - Gray v Motor Accidents Commission (1998) 196 CLR 1 - Carter & Anor v Walker & Anor (2010) 32 VR 1.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Burt | Mazzeo Lawyers |
| For the Second Defendant | Self-Represented |
HER HONOUR:
Menahem Waks, or Manny as he prefers, was a thirteen year old student at Yeshivah College in 1988 when he was sexually abused by David Cyprys. Mr Cyprys was variously a caretaker, security guard, karate teacher and locksmith at the school over the time that the abuse occurred. He has subsequently been convicted and sentenced in relation to charges concerning Manny Waks and other students.
In this proceeding Mr Waks claims damages for psychiatric injury from Mr Cyprys, who is the Second Defendant, and eleven other defendants who are associated with the Yeshivah Centre and Yeshivah College.[1] Mr Waks has settled his claims against the eleven Yeshivah defendants at mediation in September 2018. Mr Cyprys did not participate in the mediation. Mr Waks has a judgment against Mr Cyprys entered in default of a defence and my task is to assess the damages to which he is entitled in accordance with that default judgment. At the time of hearing Mr Cyprys was incarcerated and participated by videolink.[2]
[1]The Third to Thirteenth Defendants who have settled with the Plaintiff are collectively described as ’the Yeshivah defendants’.
[2]As Mr Cyprys is the only participating defendant in the proceeding I have simply referred to him as the ‘defendant’ in this judgment.
For the reasons that follow, I assess the compensatory damages in the sum of $804,170 comprising:
General Damages $ 200,000
Medical and other expenses Past $ 37,348
Future $ 25,000
Loss of earning capacity Past & Future (including Super) $ 541,822
TOTAL $ 804,170
Assessment of Damages in default of a defence - the pleaded facts.
Mr Waks pleads that the defendant is liable to him for damages as the sexual abuse was a series of batteries. Judgment in default of a defence was entered under Order 21.02 of the Supreme Court (General Civil Procedure) Rules 2015. Such judgment is interlocutory as the claim is one for damages.[3] As interlocutory judgment has been entered, the effect of the failure to file a defence is that the defendant is taken to have admitted the facts pleaded in the statement of claim.[4] The assessment of the quantum of damages is undertaken so that the interlocutory judgment can be made final. [5] The plaintiff’s entitlement to damages is to be assessed on the basis of the pleaded facts.
[3]Supreme Court (General Civil Procedure Rules) 2015 (Vic) r 21.03(1)(b).
[4]Parkville Court v Salvaris [1975] VR 393. See also Stewart v Coughlan (1885) 11 VLR 279; National Bank of Australasia v Cohen (1896) 22 VLR 269; Cribb v Freyberger [1919] WN 22; Nixon v W Phelan & Son Pty Ltd [1959] VR 83; Lombank Ltd v Cook [1962] 3 All ER 491 at 498.
[5]Victorian Economic Development Corporation v Cloverdale (1992) 1 VR 596.
The statement of claim[6] pleads that during 1988 Mr Cyprys sexually abused Mr Waks on multiple occasions. The sexual abuse was particularised in paragraph 12 as:
[6]Plaintiff, ‘Amended Statement of Claim filed pursuant to the orders of his Honour Justice Keogh dated 10 November 2019’, (‘Plaintiff’s Statement of Claim’).
a)In 1988 the Second Defendant was about 20 years of age. The Plaintiff was about 13 years of age.
b)The Plaintiff commenced karate classes organised by Yeshivah. The classes were mostly held on the grounds of Elwood Synagogue once or twice per week. The classes were run by the Second Defendant.
c)The Second Defendant pinched the plaintiff’s buttocks.
d)The Second Defendant would transport the plaintiff and other students by van to and from Elwood Synagogue in Elwood. The Plaintiff was instructed to sit next to the Second Defendant in the front passenger seat at which time the Second Defendant would regularly touch the plaintiff’s groin area over his clothes.
e)On one occasion, after a private session with another student, the Second Defendant dropped the other karate student off afterward and then returned the Plaintiff to the Centre and took him to the male Mikveh (ritual bath) at the Centre. The Second Defendant instructed the Plaintiff to undress and enter the ritual bath. The Second Defendant did likewise and told the Plaintiff he was going to teach him floating techniques. He then started to help the Plaintiff float and started touching his thighs and penis by rubbing his hand up and down the Plaintiff’s penis. At some stage the Second Defendant moved the Plaintiff’s hand so it would touch the Second Defendant’s genitals. The Plaintiff started to feel dizzy and then got out of the bath and sat on the floor in the drying area. The Second Defendant then continued rubbing the Plaintiff’s penis again. The Plaintiff felt like he was blacking out and at some point the Second Defendant stopped touching the Plaintiff and soon after the Plaintiff got dressed and left.
f)During a karate class the Second Defendant claimed that the Plaintiff did something wrong. The Second Defendant, as purported punishment, then took the Plaintiff around the back of the Centre and gave him an ultimatum to either do something which was impossible, or jog around the yard with his pants and underpants around his ankles in his view exposing his genitals.
g)During a karate class the Second Defendant grabbed the Plaintiff’s genitals from behind while the Plaintiff and the rest of the class were practicing karate moves.
h)In addition to the particulars from (a) – (g) herein, the plaintiff was abused on multiple occasions before and after karate classes by being touched on his genitals and also touched whilst sitting in the van used by the Second Defendant.
i)The abuse ceased when the Plaintiff was around 14 and a half years old.
Mr Cyprys was charged and pleaded guilty to a number of offences including three offences which related to the events outlined in particulars (e) and (f) above.[7]
[7]Plaintiff’s Exhibit P5, ‘Director of Public Prosecutions v David Cyprys [2013] VCC ‘Reasons for Sentence’ (Wischusen J)’ (20 December 2013) 20 -21.
The plaintiff had made a pre-trial submission that the defendant not be permitted to cross examine the plaintiff. That application was not heard nor determined by me. Mr Cyprys did not seek to cross examine the plaintiff and remained silent when asked by me if he wished to ask any questions in cross examination.[8] In his written submissions[9] filed after the hearing he raised matters appropriate to the quantum of damages. As they included matters not put to the plaintiff during the hearing and received after the filing of the plaintiff’s submissions, I gave the plaintiff an opportunity to respond.[10]
[8]Transcript of Proceedings, Manahem Waks v Velvel Serebrancski & Ors. (Supreme Court, S ECI 2013 01744, Forbes J, 2 September 2019) (‘Transcript’) 100 [15] – [19]: Mr Cyprys was asked ‘is there anything that you want to add at this stage in proceedings?’ He answered ‘well nothing that I can – no.’
[9]Supplementary Submissions of the Second Defendant, 13 September 2019 and 15 September 2019 (‘Second Defendants submissions’).
[10]The response was outlined in the Submissions of the Plaintiff: Plaintiff, ‘Submissions of the Plaintiff in response to the second defendant’s submissions dated 13 September 2019 and 15 September 2019’, 9 December 2019 (‘Plaintiff’s submissions in response to Second Defendant’).
Other submissions made by Mr Cyprys contested matters that went to the circumstances of the batteries. Mr Cyprys disputed the accuracy of evidence given as to the period of time over which the abuse occurred, the description of some abuse ‘over 100 times’[11], and the characterisation of his position of authority and access to keys to Yeshivah premises. It is not appropriate that I engage in fact finding as to the nature and extent of the conduct as I would be required to do in a contested hearing. By not filing a defence Mr Cyprys lost the opportunity to contest the circumstances of offending as set out in the statement of claim. By entering judgment the plaintiff is limited to those matters contained in the pleadings. As to the conduct amounting to the batteries and the circumstances of that conduct I have proceeded on the basis of the matters as pleaded between paragraphs 9 and 16 of the statement of claim and in particular the events as described in paragraph 12. I note that the pleadings describe that the Defendant ‘had unrestricted access and/or was permitted to be on the grounds and in the buildings of the Centre and was provided with keys to the premises and the Centre.’[12]
[11]Transcript of Proceedings (n 8) 27.
[12]Plaintiff’s Statement of Claim (n 6)[11].
In the task of assessing both pecuniary and non-pecuniary damages the following issues arise:
(a)First, what is the proper approach to assessment of damages of a tortfeasor when other tortfeasors have paid damages in settlement for the same injury?
(b)Second what is the effect of earlier occasions of abuse by a different person which are not the subject of the proceeding?
(c)Third, is the plaintiff entitled to recover aggravated and/or exemplary damages against the defendant?
The First Issue: Settlement with the Yeshivah defendants
I am assessing the defendant’s liability in circumstances where the plaintiff has already been paid damages by the Yeshivah defendants for the same loss and damage.
The claim against the Yeshivah defendants was a claim in negligence for breach of their duty of care as persons carrying out the activities and functions of the Yeshivah Centre. The claim against those defendants also pleaded aggravated and exemplary damages. The terms of settlement[13] were tendered. They include a term that the settlement sum be kept in strict confidence by all parties. The terms of the agreement makes reference to the claim for compensation, and the claim for aggravated and exemplary damages. It describes the Yeshivah defendants as paying the settlement sum in satisfaction of any and all liability.
[13]Plaintiff’s Exhibit P1, Terms of Settlement, 14 September 2018.
In submissions[14] filed prior to the hearing the plaintiff submitted that the Yeshivah defendants and Mr Cyprys are each jointly and severally liable to pay the entirety of damages. The settlement by some but not all tortfeasors made clear that it was only in satisfaction of all claims against the Yeshivah defendants, and as such the plaintiff can continue his action against the non-participating tortfeasor.
[14]Plaintiff, ‘Outline of submissions of the Plaintiff’, July 2019, (‘Plaintiff’s Submissions).
The defendants are concurrent tortfeasors, jointly and severally liable for the same loss and damage sustained by the plaintiff as a result of their independent tortious acts. The plaintiff submitted that they are joint tortfeasors. The submission referred to Baxter v Obacelo.[15] In Baxter, Gleeson CJ and Callinan J quote from Thompson v Australian Capital Television Pty Ltd[16] to demonstrate the difference between joint tortfeasors and several concurrent tortfeasors:
The difference between joint tortfeasors and several tortfeasors is that the former are responsible for the same tort whereas the latter are responsible only for the same damage. As was said in The ‘Koursk’, for there to be joint tortfeasors ‘there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage’.[17]
[15](2001) 205 CLR 635 (‘Baxter’).
[16](1996) 186 CLR 574 (‘Thompson’).
[17]Baxter (n 15) quoting Thompson [603-604] per Gummow J; Bryanston Finance Ltd v de Vries [1975] QB 703 at 730, per Lord Diplock.
Examples of joint tortfeasors include persons one of whom is principal or vicariously liable for the act of another, or persons upon whom the same duty is jointly imposed, or persons acting in concert in committing the tort. In Baxter, the defendants were joint tortfeasors as one was vicariously liable for the negligence of the other. There is no such pleaded relationship or concerted acts that would make the defendant a joint tortfeasor rather than a concurrent tortfeasor. The defendant is liable for the intentional tort of battery, the Yeshivah defendants are liable for breach of a duty of care. They are not responsible for the same tort, only the same damage.
However nothing turns on this as, whether concurrent or joint tortfeasors, the second to thirteenth defendants are jointly and severally liable for the same injury, loss and damage. I accept that I am to assess that loss and damage in full. If the damages that I award are greater than the settlement sum, then I will be bound to give credit for the amount already received from the Yeshivah defendants in the settlement.
The Second Issue: Earlier abuse by a person not party to the proceeding.
Mr Waks alleges an earlier period of sexual abuse by a different adult, Velvel Serebranski who was a part of the Yeshivah community (‘earlier abuse’). This also occurred while he was a student at Yeshivah College. Although originally named as the first defendant, that man’s actions did not form any part of the pleadings. The Yeshivah defendants have not paid damages to Mr Waks for any liability they might have associated with the earlier abuse.
Mr Waks gave some evidence as to the earlier abuse.[18] He said it happened a handful of times over a maximum of 6 months. He confirmed it was at the age of about eleven. The details of the earlier abuse are also before the Court from the history given to Professor Dennerstein.[19] It was described as occurring both in synagogues and in areas located outside the synagogue and involved touching of genitals at times over clothes and at other times while naked and occasions where the adult engaged in oral sex on the plaintiff. The abuse by Mr Cyprys was said to have commenced about six months after this earlier abuse stopped.[20] The earlier abuse is still subject to investigation by Victoria Police.
[18]Transcript (n 8) 43 - 44.
[19]In particular her first report dated 23 September 2014. Part of plaintiff’s Exhibit P6, Lorraine Dennerstein, Medico-legal Report, 23 September 2014 (‘Dennerstein report’).
[20]Ibid 6-7.
The two periods of abuse occur close in time and at a time of immaturity of the plaintiff because of his young age. The medical evidence opines that the ‘experience of sexual abuse by both Velvel and Cyprys has caused the development of the psychological conditions’[21].
[21]Ibid 21.
The state of the medical evidence directed at causation in light of the earlier abuse identifies the assaults by Mr Cyprys as a cause of his psychiatric injury. This is sufficient to give rise to a liability to pay damages for the entirety of the psychological conditions. In assessing those damages the defendant takes the plaintiff as he finds him. However, in assessing those damages, the possibility of impact from earlier unrelated events on enjoyment of life or earning capacity is not ignored. If, as here, there is evidence of earlier sexual abuse which itself was a cause of some psychiatric injury, the effects of which are not established on the balance of probabilities, then the possibility of ongoing consequences cannot be disregarded in arriving at proper compensation.
In Malec v JC Hutton, when specifically discussing damages for loss of earning capacity, the Court said:
Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.[22]
In assessing both past and future losses the court must hypothesize what would have happened or what was likely to happen absent injury. Neither inquiry is an exercise in proof of historical fact.
[22](1990) 169 CLR 638, 639 (‘Malec’).
In Seltsam v Ghaleb, Ipp JA described this approach in evaluating possibilities as providing ’appropriate allowances’ for contingencies. He said:
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.[23]
[23][2005] NSWCA 208 [106 - 107].
The defendant could have, but did not, lead evidence to prove on the balance of probabilities the extent to which injury caused by the earlier abuse would, without more, have impacted upon enjoyment of life and capacity to earn. No evidence was led by Mr Cyprys on this question to discharge this evidentiary burden of proof. [24] In my view the approach that I should take in having regard to the occurrence of the earlier abuse is as described by the Court of Appeal in Smith v Gellibrand, albeit in the context of a judge’s direction to a jury:
It was correctly regarded by the trial judge to be a case where evidence had been led which was capable of being accepted by the jury as showing the existence of medical conditions which could be taken into account by the jury when assessing the likely condition and fitness for work of the appellant but for any injury the jury found to have been sustained as a result of the respondent’s negligence. That is, it was correctly regarded by his Honour as a vicissitude case and the jury was then given relevant and unimpeachable directions about vicissitudes generally and the vicissitudes in this particular case.[25]
[24]Purkess v Crittenden (1965) 114 CLR 164 [171] (Dixon C.J, Menzies and Windeyer JJ) quoting Watts v Rake (1960) 108 CLR 158 [160] (Windeyer J): “If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause.”
[25][2013] VSCA 368 [77].
Accordingly, I assess damages for the entirety of the plaintiff’s psychiatric injury. I consider the evidence as to the possibility of contributing effects of the earlier abuse as a factor in arriving at an appropriate allowance for vicissitudes to be applied to those damages.
Assessing the extent of injury, loss and damage suffered
Mr Waks is the eldest son and second eldest child in a family of 16 children. He grew up within a Chabad community, an ultraorthodox Hasidic sect. His father had grown up in a more secular environment and maintained some practices which were more flexible than the orthodoxy in which the family otherwise lived. Generally however he grew up in a religious environment insulated from wider secular society where every aspect of life was dictated by religion.
Education
Mr Waks received very little in the way of secular studies. He had two years of schooling at an ultra-orthodox school in Israel before coming to live in Australia at the age of seven.[26] He attended Yeshiva College in Melbourne from mid-Grade 4 until mid-year 7. He described only a short period of secular studies.[27] Mr Waks went to Israel from mid-Year 7 and did 6 months of full religious studies there. Upon returning to Melbourne he was taken out of general schooling studies and was placed in Year 9, full time religious studies.[28]
[26]Dennerstein report (n 19) (September 2014) 4.
[27]Transcript (n 8) 21.
[28]Ibid 22.
He did not know what was planned for him by embarking on religious studies rather than general studies.[29] Generally the path chosen for him by his family contemplated a life focussed on religious observance and instruction.[30] It was not addressed in evidence what sort of preparation such a religious education might be for an adult working life in a secular environment. It was not the equivalent of attaining a VCE or HSC.[31] Mr Waks himself did not know what might have been planned.
[29]Ibid 40.
[30]Ibid.
[31]Ibid.
The period of abuse by the defendant began before the six month period when he was sent to Israel to study. He said he was a troublemaker there and returned to Melbourne at which time the abuse by the defendant resumed.
Early response
From the age of about 14, Mr Waks said he began to rebel in every possible way. In particular he deliberately failed to make religious observances. He was punished harshly for such behaviour – thrown out of classes and belted by his parents on a daily basis.[32] At times between the ages of 14 and 17 he was sent away and his education during this time was significantly disrupted. At times he was suspended from the Melbourne Yeshiva Centre. His parents sent him to Yeshiva Gedola in Sydney to further religious studies[33] but he was later expelled from that institution. He then attended further Yeshiva’s in Melbourne and Sydney but was also expelled from those schools. In evidence, Mr Waks said one of the reasons for his expulsions was for displaying a completely secular lifestyle.[34] He did not complete his religious studies.
[32]Transcript (n 8) 36.
[33]Ibid 38.
[34]Ibid 39.
He described being a troublemaker, a ‘rebellious child’.[35]From the age of 14 he began abusing alcohol and illicit drugs,[36] not eating kosher and deliberately desecrating the Sabbath. He described his behaviour as challenging himself to show how much he hated his religion.[37] He had not disclosed the abuse to anyone during this period.
[35]Ibid 36.
[36]Ibid 42.
[37]Ibid 35.
Shortly after his eighteenth birthday, in April 1994, Mr Waks went to Israel. He went, ‘to escape from the Melbourne Jewish community, my local community, my family, my environment and just go pretty much as far away as I could’.[38] He described shaving off his beard on the flight – an act contrary to his religious observance and a shedding of his past identity.[39] He joined the Israeli army in November 1994 and found the military experience difficult partly through not knowing Hebrew and partly as it was not what he anticipated. He described ‘pushing boundaries’ in many ways including drug and alcohol use. He described being angry and that Mr Cyprys was regularly on his mind.
[38]Ibid 44.
[39]Ibid 45.
In 1996 he had a month’s leave of absence and returned to Melbourne. While here he heard on radio of a police operation, Operation Paradox, seeking victims of child sexual abuse to come forward and report their experiences. He spoke to his father of his experiences and he and his father gave police statements. At that time he also reported the occurrences of the abuse to the head of the Yeshivah Centre.
Despite having only one month leave of absence Mr Waks remained in Australia for five months. During this time Mr Waks describes ongoing substance abuse issues.[40] It was undoubtedly a difficult time disclosing the abuse to his family, to the Yeshivah rabbi and to the police. On finally returning to Israel he did not rejoin his military unit. As he was absent without leave he was arrested by the military police and went to military jail for 45 days.
[40]Ibid 54.
He described generally the difficulties associated with sexual relationships as a young adult and meeting his wife in 1997 after he returned to Israel. They returned to Australia in March 2000. He and his wife began a family with their children being born in 2004, 2006 and 2008. Their relationship broke down in approximately 2016.
Return to Education
On return to Melbourne in 2000 he embarked upon completing secular VCE studies part time by evening classes. He described finding VCE challenging having mostly only completed religious studies and due to the disruption caused to his education. However he found the studies ‘empowering and satisfying’[41] as it was the first time his mind was opened to the prospect of study beyond religious texts.
[41]Ibid 58.
On finishing VCE in 2002 Mr Waks enrolled in a Bachelor of Arts transferring to a Bachelor of International Relations at La Trobe University completing the degree in 2005. He has also obtained a Diploma in Project Management.[42]
[42]Dennerstein report (n 19) (September 2014), 4.
Employment history
Mr Waks has had a varied work history since 2000. While studying VCE he worked during the day as an integration aide at a Jewish school. He described having less work while at university but at least some part time work. Following completion of his degree he described planning to go to America where he ‘pretty much secured a job’[43] assisting his brother in the building business. However, he did not take this up as he was offered work as the executive officer of the Anti-Defamation Commission. He worked in this role for two years from 2006 to 2008. He described finishing that role on ‘not ideal terms’.[44]
[43]Transcript (n 8) 61.
[44]Ibid 64.
He then joined the commonwealth public service (‘CPS’) and worked in Canberra from 2009 in an executive level position. He was an Assistant Director at the Office of Transport Security in the Department of Infrastructure and Regional Development.
During his time in Canberra he also held senior leadership positions in the Jewish community there as the President of the local Jewish community and Vice President of the Executive Council of Australian Jewry. He described this as fulfilling, at least in some ways.[45] Although not much attention was paid in evidence to this, I infer that this represented a lessening of the rebellion against his religion that had dominated his life from the age of 14 to his mid-twenties and a resumption of some level of religious involvement and observance.
[45]Ibid 62.
In 2011 Mr Waks publically disclosed the circumstances of his own experience of abuse. He described being contacted by many people as a result and began public speaking and advocacy for victims of childhood sexual abuse in institutions. This involvement became increasingly demanding on his time. In August 2011 he underwent a session with a psychologist where he discussed the stress and difficulty the public disclosure was causing him and how he was coping with the consequences of his experiences. A second session with a different psychologist occurred in December 2011. Both sessions were provided through his employment with the Department of Infrastructure and Transport.[46]
[46]Part of plaintiff’s Exhibit P10, Ray Smith, (‘Session Notes’ Optum, 16 December 2011 and 15 August 2011) (‘Optum notes’).
Mr Waks made a decision to return to Melbourne. He obtained another role with the department that permitted him to move to Melbourne and remain in the CPS. However a role at a comparative executive level was not available. He worked in Melbourne until resigning in early 2013.
Paid and voluntary advocacy
Ultimately, the reason for resigning his employment with the CPS was a decision to take on a full-time role as advocate and support for victims of child sexual abuse in institutions, particularly within the Jewish community. He ‘decided…this would be a good way to see if…there’s a need…a desire for a new organisation dealing with this issue[47]. Mr Waks said ‘out of the Victorian Government inquiry[48] and my evidence there it was clear that I had to leave the public service, which I did… at great personal risk and I lost a fair bit out of that and even financially…’[49] He described his public service career as a ‘safe employment environment’ and ‘a great job with a career path’ which he made a conscious choice to leave and follow the sense of mission which imposed upon him the need to advocate for victims.
[47]Transcript (n 8) 75.
[48]Royal Commission into Institutional Responses to Child Sex Abuse.
[49]Transcript (n 8) 75.
He commenced working fulltime as an advocate and public speaker addressing the issue of child sexual abuse. He conducted this activity through an organisation he founded in December 2012 called Tzedek,[50] a support group for Jewish survivors of childhood sexual abuse. When he resigned from the public service he took on a full time role as Chief Executive Officer of Tzedek. Mr Waks held the office of President of that organisation until 2014. Although that work was initially on an unpaid basis, it was agreed that if funds were available he would be paid a salary similar to what he was earning in the public service. Funds did become available and he was paid for the full period of his time at Tzedek. At times this involved work of up to 60 hours per week.[51]
[50]The Hebrew word for Justice, Transcript (n 8) 76.
[51]Dennerstein report (n 19) (August 2015) 15.
The work of Tzedek led to conflict and animosity towards Mr Waks from within the Jewish community. He resigned from Tzedek and left Australia in late 2014. He describes a ‘backlash’ from his religious community that affected him, his parents and his wife significantly. Dr Dennerstein described this as:
He and his wife now feel that they must leave Australia as his wife feels she can’t walk in certain streets which are used by community. She is very anxious in certain areas or going to events and he is similarly anxious. His children have pointed out to him that everyone is looking at him. He feels he has a mark on his head as a victim and that this has rebounded on them.[52]
The family left Melbourne and now live in Tel Aviv, although Mr Waks and his wife have since separated.
[52]Ibid (September 2014) 15.
In 2016 in Israel Mr Waks established an organisation known as Kol v’Oz. It is also an advocacy and support group for survivors of childhood sexual abuse in the global Jewish community. Kol v’Oz has within the last year been registered as a formal not for profit organisation in Israel. The website for Kol v’Oz[53] describes it undertaking activities including: maintaining a website and facebook group, compilation of best practice material, holding workshops and conferences for professionals, a continuing media campaign, training speakers and professionals to present workshops, providing support advice and expert testimony to relevant agencies, Mr Waks undertakes a variety of activities promoting the objects of that organisation on a voluntary basis. He describes being in charge of things with other volunteers who do some of the preparatory work drafting and writing. He maintains a level of public speaking and a media profile. Some of his speaking engagements are paid.[54]
[53]Plaintiff’s Exhibit P14, Mr Michael J Lee, ‘Supplementary Forensic Accountant’s Report in the matter of Menahem Leib Waks’ (11 September 2018) (‘Forensic Accountant Report’) 95 [App 6].
[54]Transcript (n 8) 84.
Additionally, he has written and published a book about his experience and derived income from that activity. The level of income is dependent upon sales and is described as modest. I have two tendered bank receipts dated November 2015[55] and October 2016[56] in relation to income from the book. Together they total $8,617.50. No evidence was given as to income for 2017-2019 in relation to book sales or overall income.
[55]Part of plaintiff’s exhibit P2, Commonwealth Bank receipt, 6 November 2015.
[56]Ibid 14 October 2016.
He also gave evidence of being engaged in paid research work through Monash University. He was unclear on the period. The work could be conducted flexibly over hours determined by Mr Waks. The Monash University payslip dated 15 March 2018[57] noted total nett payments for the 2018 year to date at $10,606.00. Another document, an invoice[58] for ‘M Waks’ (with an ABN) described as ‘Invoice #54’ was dated 16 July 2016 and was for 8.75 hours at $250 per hour for International Society for Music Education totalling a nett payment of $2,187.50.
[57]Part of plaintiff’s exhibit P4, Payslip from Monash University, 15 March 2018.
[58]Ibid, Tax Invoice for Invoice #54, 16 July 2016.
The documentary evidence of paid employment since 2015 was incomplete and the oral evidence was similarly vague and incomplete. It is not possible on the evidence presented to accurately assess actual earnings from 2015 onwards.
Generally he says of his years in Israel and his present situation that he is able to do very little work-like activity. He describes days where he has a sense of paralysis and is unable to function at any level, and other days when he is able to be more productive and can do significantly more than just a few hours. He has a long term goal of being able to function in a traditional setting of regular and prescribed work hours without the flexibility afforded by his present arrangements.
His present ‘work’ causes triggers and traumas but he also describes it as ‘his mission’ and derives a healing element from it.
Beyond the effects on his work capacity, Mr Waks gave evidence of the pervasive effects of the abuse on his personal life. The abuse was a factor in the breakdown of his marriage in 2016. There are divisions between himself and some siblings which have been disrupted by their respective experiences of abuse and are only now in the process of being mended.[59]
[59]Transcript (n 8) 86.
Presently he contrasts times of being able to be productive giving him a sense of empowerment with other times of feeling futility and turmoil. Apart from medical treatment detailed below, he has tried various activities to promote wellbeing, improvement in mood and healing. He has utilised yoga and Pilates at times as well as physical activity – presently cycling an hour each way into the centre of Tel Aviv as often as he can, at times up to five times a week.
Medical treatment
Mr Waks has been diagnosed with chronic post-traumatic stress disorder, an adjustment disorder with depressed mood, major depression and polysubstance abuse/dependency. The medical evidence detailed below notes the manifestation of symptoms in close time relation with the abuse and accepts that the psychiatric conditions diagnosed are as a result of abuse.
In terms of medical treatment or formal medical assessment, apart from the two sessions in Canberra in 2011[60] there has been no evidence of any medical treatment in Australia.
[60]Optum notes (n 46) 15 August 2011.
Two medical legal assessments were made for the purpose of Mr Waks’ Victim of Crime Compensation application. The first was by psychologist Dianne Dockery who consulted Mr Waks on 15 October 1996. Her report of 24 January 1997 makes reference to both perpetrators of abuse and described the abuse of Mr Cyprys, particularly the events in the Mikveh as ‘more vivid and more disturbing’ for the Plaintiff.[61] She diagnoses symptoms consistent with post-traumatic stress disorder resulting from the experiences of abuse.
[61]Plaintiff’s Exhibit P8, Report of Dianne Dockery, 24 January 1997 (‘Dockery’s report’).
Secondly, Susan Hook, clinical psychologist, assessed Mr Waks in August 2000. [62] She described connections between the abuse and the rebellious behaviour and alienation from school and family that were only recently being made. She describes some improvement in family relations at the time he was newly arrived back in Australia from Israel. He was thought to be in need of treatment for significant symptoms that impacted upon his ability to function. Therapy and progress were thought to be partly dependent on his ability to find work. Following Susan Hook’s assessment Mr Waks was able to sustain work and returned to study to complete secondary school and undergraduate university studies as outlined above. There is a reference to attending six sessions out of ten approved therapy sessions through the Victims of Crime process.[63]
[62]Plaintiff’s Exhibit P9, Report of Dr Susan Hook, 7 August 2000.
[63]Dockery’s report (n 61) 13.
In 2014 medical treatment was advised by Professor Dennerstein, who saw Mr Waks in September 2014 shortly before he again left Australia. She recommended treatment by psychiatrist or psychologist and consideration of the use of antidepressant medication under psychiatric supervision. Like the earlier assessors, Professor Dennerstein diagnosed post- traumatic stress disorder and an associated adjustment disorder with depressed mood. She felt that the symptoms had become more manifest in the years leading up to 2014. She also diagnosed substance abuse that had involved alcohol, marijuana and other drugs described by her at that time as Marijuana Dependency. She also diagnosed Oppositional Defiant behaviour which has since resolved. This diagnosis encapsulated Mr Waks’ behaviour in later teens and through the later 1990s.
Between 2014 and July 2016 the reports of Professor Dennerstein demonstrate a worsening of the depressive symptoms such that a Major Depressive Disorder was diagnosed by 2016 along with a continuing Polysubstance Abuse/Dependency. In 2016 Mr Waks was in the throes of his marriage ending. His psychological conditions at that time required active treatment and it remained to be seen whether they would respond to treatment. Unfortunately Professor Dennerstein has not examined Mr Waks since July 2016, shortly after the commencement of treatment.
From January 2016 treatment was provided in Israel by a clinical psychologist Orna Sieradzki. This was intensive; twice weekly psychotherapy initially and then psychoanalysis four times a week from April 2016 and then three time per week from December 2017. The psychologist diagnosed PTSD, anxiety and depression. Her report was dated 1 May 2017.[64] In an email of 28 August 2018,[65] an updated report is provided in substantially identical terms to the first report.
[64]Part of plaintiff’s exhibit P11 , Reports of Orna Sieradzki, (‘Sieradzki report’), 1 May 2017.
[65]Ibid 28 August 2018.
From May 2017 he has been under the care of a general practitioner, Dr Yosef-Ayalon. She describes oversight by a psychiatrist and the prescription of Seroxat for anxiety and depression. From the beginning of 2018 Mr Waks has also been prescribed medicinal cannabis which is assisting with anxiety and sleeping. As at June 2018 the general practitioner describes some slight improvement since their initial meeting a year earlier and opines that ongoing significant support is needed to assist the healing process and rehabilitation.
In Israel, Dr Caspi, psychiatrist has been treating Mr Waks. In his report of August 2018[66] he describes treating Mr Waks for ‘several years’ but it is not clear when he first became involved in treatment. He observed treatment as leading to ‘only a slight improvement’. He is treating prolonged symptoms of post-traumatic stress disorder manifesting in symptoms including depression and anxiety and personality changes. Medication has been an anti-psychotic medication Olanzapine in the past and medicinal cannabis since the beginning of 2018 licenced by the Israeli Ministry of Health. As at August 2018 Paroxtine daily was also prescribed.
[66]Plaintiff’s Exhibit P13, Report of Dr Asaf Caspi, 8 August 2018 (‘Dr Caspi report’).
Dr Caspi’s report describes Mr Waks as being unable to maintain ‘any occupational stability’.[67] He does not express an opinion as to future capacity. He observes that Mr Waks has recently been ‘recognised as a 100% disabled person for the purpose of employment by the Israeli National Insurance Institute’.[68] There is no explanation as to how this recognition was arrived at.
[67]Ibid.
[68]Ibid.
In addition to reports from treating practitioners, Mr Waks has undergone medico-legal assessments by Professor Dennerstein a psychiatrist, and Dr Sillcock an occupational physician.
I have referred to the reports of Professor Dennerstein earlier in this judgment. As at 2016 when last examined she opined that he would not be able to work full time or in his previous paid employment and that this would continue for the foreseeable future. She thought he had a part time capacity for consultancy work which he was then able to do a few hours a day at his own pace. An increase in the amount of work was dependent on response to treatment which at that time had only recently commenced. At that time the development of Kol v’Oz was also relatively new.
Dr Sillcock first examined Mr Waks in March 2017.[69] She obtained an occupational history of work as an integrations aide ‘for short periods’ in the early 2000’s and two years at a Jewish organisation addressing anti-Semitism. His longest employment was noted to be with the Australian Government in Canberra between February 2009 and later 2012 or early 2013. After that she describes: ‘He has also worked as a consultant on small projects. He has worked intermittently in the child sexual abuse field in an organisation that he established but he also fell out with this board.’[70] Mr Waks works with an organisation based in Israel in work that is ‘largely voluntary and he rarely gets paid anything for it’.[71]
[69]Plaintiff’s Exhibit P7, Reports of Dr Amanda Sillcock (‘Dr Sillcock’s report’).
[70]Ibid 30 March 2017, 2.
[71]Ibid.
Dr Sillcock opined that Mr Waks’ capacity for employment was limited by his mental state and in particular his substance abuse which appears to be getting worse. In an updated report[72] based on an assessment in July 2018, Mr Waks described himself ‘a little better’ than when last seen. He was still a heavy cannabis user, including medicinal cannabis. On this history, Dr Sillcock expressed the view that he remained incapable of working on a consistent and reliable basis. She was of the view that he had minimal capacity for paid employment. Mr Waks’ psychiatric injury has impacted upon every aspect of his life, altering the trajectory of his education and employment as well as affecting his capacity for those activities.. That impact has consequences that are likely to be lifelong.
[72]Ibid 12 July 2018.
Quantifying the loss
Quantifying that impact and assessing damages is not an easy task. The principle upon which damages are awarded is well known:
…a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries.[73]
In effect, the purpose of damages is to restore the injured person to the position they would have been in had the tortious conduct not occurred, at least in so far as money can do.
[73]Todorovic v Waller (1981) 150 CLR 402 (‘Todorovic’) [412].
It is readily apparent that damages cannot restore a quality of life and so pain and suffering damages are an attempt to recognise the loss suffered so far as money can do. Pecuniary loss damages recognise the impact of the injury on a capacity to earn as well as medical and like expenses needed to manage the injury.
The Defendant’s submissions as to quantum of damages raised the following arguments:
(a)‘Kol v’Oz is a significant international organisation, which was founded by the Plaintiff in 2016, and has the potential to generate significant income for the Plaintiff in the not too distant future’.[74]
(b)He submits that ‘the Plaintiff is leading a very active and productive life.’
(c)That ‘during the plaintiff’s evidence, he stated that he was unable, or afraid to venture outside. However the information about his activities with Kol v’Oz appear to suggest the opposite is the case.
[74]Second Defendant’s submissions (n 9) 2 [9].
I’ve had regard for the defendant’s submissions in assessing the evidence but have not had regard for any attempt to introduce further evidence through those submissions.
General Damages
The effect of the defendant’s assaults on Mr Waks has been profound. The final assault at the Mikveh with the religious significance of that location remains particularly disturbing for the plaintiff. The reckless and rebellious behaviour of his teenage years and twenties has disrupted his transition from adolescence to adulthood.
I accept that the period serving in the Israeli army was difficult and certainly disrupted by his lengthy return to Melbourne and period of being absent without leave. It was also a period characterised by significant use of alcohol and illicit substances. Nevertheless he remained serving in the army over a period of approximately four years.
On return to Melbourne he was able to complete his VCE while working and obtain an undergraduate tertiary degree. For a young man with little secular education behind him this is a significant achievement.
While in Australia between 2000 and 2014, he maintained regular and consistent full time employment. While studying his VCE he maintained work as an integration aide. He held some part time work while at university and after graduation he maintained fulltime executive level employment for some years.
I was impressed by the resilience and ability of Mr Waks to overcome the initial rebellious and reckless behaviour so that the Oppositional Defiant behaviour has resolved. With maturity, he has been able to complete studies and become a contributing member of his religious and secular community. This is not to underestimate the hardship associated with these achievements. Nor does it discount the impact of isolation and exclusion by his faith community when he made a public disclosure of the abuse. That exclusion and ostracism extended to his family members which had an impact on his own sense of self.
There was something rehearsed in the way he gave evidence as to the events and their effect on him. This is not surprising given that he has spoken publicly on a number of occasions prior to giving this evidence: on occasions of sworn testimony such as at the Royal Commission, and in the course of his advocacy work[75] and the making of a documentary.[76] Despite this it remained difficult for him to maintain composure at times while giving his evidence. I accept he remains distressed by recall of the events and takes steps to avoid stimuli of his own memories and associations of the events.
[75]Transcript (n 8) 69.
[76]In New York with ABC where there was an attempt to confront Mr Serebranski. Dennerstein’s report (n 19) August 2015.
The course of his symptoms has fluctuated. As described earlier, from the age of about 14 years old his symptoms were significantly disruptive. Alcohol and on occasion drugs were used indiscriminately from around 15 years old so that any psychiatric injury remained undiagnosed and untreated. The effect of the injuries on his capacity to function seems to have lessened, without formal medical treatment, upon his return to Australia from 2000.
In 2014 Dr Dennerstein describes:
He has periods of lowered mood lasting for some hours and occurring frequently. He is easily tearful.
He continues to have re-experiencing of the abuse in the form of intrusive thoughts of the abuse which occur daily, flashbacks which are easily triggered and dreams….
He continues to have guilt feelings associated with the abuse.
He continues to feel anger towards the institution involved (Yeshiva)…
He now feels empowered by his actions of disclosure and forming Tzedek and giving testimony.
He continues to have psychic and somatic anxiety…. He has increased anxiety with the knowledge he is leaving his job and that they must leave Australia.[77]
[77]Dennertsein’s report (n 19) September 2014.
In August 2015,[78] by Skype assessment from France where Mr Waks was then resident, Professor Dennerstein observed that substance abuse had increased and suicidal ideation had increased. She held the view that the depression had worsened in recent months such that Mr Waks then met the criteria for a Major Depressive Episode. Urgent treatment was recommended. In part treatment was needed to reduce reliance on self-medication with marijuana and alcohol.
[78]Dennersetin’s report (n 19) August 2015.
In July 2016 a further Skype review assessment[79] was undertaken. On this occasion Professor Dennerstein noted increased depression, intensified suicidal ideation, frequent panic attacks and, although he was undergoing psychoanalytic counselling with Dr Sieradzki by this time, he remained resistant to the idea of antidepressant medication. In her view Mr Waks still required urgent active treatment. In part that treatment needed to be directed at his continuing substance abuse and dependency.
[79]Dennerstein’s report (n 19) July 2016.
Treatment has been more intensive since this assessment. The short reports from the treating practitioners provide some assistance in understanding the changes that are emerging with treatment. In 2018 Dr Yosef-Ayalon describes meditation and massage therapy to be greatly assisting and that significant daily physical activity is needed to maintain a healthier physical, psychological and emotional state. She observed ‘slight improvement’ and notes the risk of deterioration of the various remedial actions are not maintained.[80] Again Dr Caspi describes a ‘slight improvement’ with a need for ongoing combined mental health care with intensive psychotherapy and medication.
[80]Plaintiff’s Exhibit P12, Dr Yosef-Ayalon, Medical Report, 26 June 2018 (‘Dr Yosef-Ayalon report June 2018’).
The evidence indicates that the conditions are chronic and they will continue to affect his life into the future requiring long term medical treatment and maintenance of a range of activities such as yoga, exercise and meditation to assist in his healing. Mr Waks himself expresses hope of some improvement with time and the continuation of treatment.
These matters all give cause for some optimism that the level of symptoms will continue to become more manageable.
The Plaintiff did not submit any specific figures as to the quantum of the plaintiff’s pain and suffering claim. Instead the plaintiff submitted that the court should be guided by the decisions of Erlich v Leifer & Anor[81], P2 v D2[82] and Walker & Anor v Hamm & Ors (No 2)[83] when quantifying appropriate compensatory damages.
[81][2015] VSC 499.
[82][2019] NSWDC 84 (‘P2 v D2’).
[83][2009] VSC 290.
In particular, the plaintiff submits that the facts in P2 v D2 are alike to those of this matter ‘being that the Plaintiff, was sexually abused between the age of 12 and 16 (by her foster father).’[84] In this case Russell J said ‘… the court should aim towards the upper limit of the wide range of damages which might conceivably be justified.’[85] Whilst cases with similar facts may be of assistance, the pain and suffering caused to each individual by virtue of the abuse, turns on its own facts and therefore a finding as to an assessment of damages in one case is not binding on another. Other cases such as Hand v Morris[86] also illustrate the individuality of any damages assessment.
[84]Plaintiff, Supplementary Submissions of the Plaintiff, Submission in Manahem Waks v Velvel Serebranski Ors. S CI 2013 01744, 6 September 2019, (‘Plaintiff’s Supplementary Submissions’)5 [2.8].
[85]P2 v D2 (n 82) [47].
[86]Hand v Morris & Anor. [2017] VSC 437.
I assess general damages at $200,000.
Pecuniary loss/damages
In Todorovic, the Court described the task of assessing damages for future pecuniary loss comparing ‘what the plaintiff might have earned if he had not suffered the injury with what he is likely to earn in his injured condition’ as engaging in ‘a double exercise in the art of prophesying’.[87]
[87]Todorovic v Waller (n 73) [412] quoting Paul v Rendell [1981] 55 ALJR [372].
The task of identifying the course of a life and career of a person injured as a young child is difficult. It is necessary to set some benchmark against which to measure the restoration to be made by an appropriate award of damages. The double prophesying applies to both past and future loss. In some cases a comparison can be made informed by educational progress and vocational aspirations to inform an assessment of what a child might have been able to go on to earn without injury. The difficulty is compounded in the situation here where the plaintiff’s childhood was in a closed religious community and his schooling was largely confined to religious education which would not have led to qualifying him for entry into secular tertiary studies. The plaintiff himself understandably did not know what was planned for the future when he was entered into religious studies.[88] It is not possible to set a benchmark for assessing loss of earning capacity based upon aspiration or by reference to other factors that pre-date the injury. The first part of the prophesying – what the plaintiff might have earned had he not been injured is on the evidence completely speculative.
[88]Transcript (n 8) 40.
I propose to use his earnings as a Commonwealth public servant as a benchmark against which to measure the loss occasioned by the injury. The plaintiff calculated his loss upon that basis. I use this benchmark for two reasons. First, the plaintiff has completed secular educational qualifications and obtained and maintained work in the Commonwealth public service. It is clear from this that his capacity to study and engage in work as a tertiary graduate no doubt existed. It seems that in the midst of his rebellious and destructive behaviour he nevertheless set upon a path of study and work that accorded with his secular interests. As such, I accept that the earnings as a Commonwealth public servant are an appropriate benchmark against which to measure the loss of capacity to earn. Although these events occurred after injury, the completion of study and the maintenance of executive employment between 2009 and 2013 is the best demonstration of capacity absent any other evidence.
Second, in looking to the future, public service employment encompasses a large and relatively stable workforce with a long median length of service.[89] As such, it decreases the underlying level of speculation that might be necessary as to the plaintiff’s unknowable intentions.
[89]Forensic Accountant Report (n 53) 14, [6.10(iv)].
However, using this as a measure for assessing compensatory damages is not an acceptance that but for injury this would have been the career path taken by the plaintiff. The calculations of Mr Lee are based upon various assumptions as to how an intended career path might progress in such an occupation. Those assumptions are not borne out by the evidence. In particular, Mr Lee’s report provides two alternate scenarios based upon different career paths within the public service. There is no evidence that would allow me to find one or other scenario more probable than not.
Mr Lee’s report calculates superannuation losses based upon the particular Public Sector Superannuation Scheme which, unlike general employment superannuation legislation, provides a defined benefit and pension scheme. As I am using public sector earnings as a benchmark rather than as a probable career path, it is in my view more appropriate to use general employer superannuation provisions, more particularly employer compulsory contributions of presently of 9.5% of gross earnings.[90]
[90]Superannuation Guarantee Administration Act (1992) presently provides 9.5% although the actual percentage has varied over time.
Therefore, I am assisted by those aspects of Mr Lee’s report that identify relevant nett or gross amounts appropriate to use in adopting a measurement of Mr Waks’ capacity to earn had it not been compromised. Those figures assist in determining a loss of capacity not a loss of particular career.[91]
[91]State of NSW v Moss (Heydon JA) 54 NSWLR 536, 553 [71].
Past loss
The plaintiff’s claim for past loss is set out in particulars dated 13 September 2018.[92] It claims past loss on the basis of Mr Lee’s calculations as at September 2018 without updating the figures to the time of trial. The calculations measure without injury earnings on the assumption that VCE would have been completed in 1994 and tertiary study by 1997, with entry into the Commonwealth public service at the beginning of 1998 and maintaining that employment to date. I do not accept these assumptions as they do not take into account that schooling in religious studies to 1994 would not have allowed for progression to tertiary studies.
[92]Plaintiff, Particulars of Special Damages, 13 September 2018 filed with the Court.
In my view any loss of capacity prior to graduation is not demonstrated. First, there is no evidence of actual loss of earnings from 1998 onwards while in Israel. During that period the plaintiff was a fulltime serving member of the Israeli defence force or, as instructed to Mr Lee, was working in security. I cannot be satisfied that the plaintiff has established a loss of capacity to earn prior to his return to Australia.
On return to Australia the plaintiff undertook the necessary secular studies for entry into graduate work. It is clear that such study would have been necessary in order to pursue a public service career even without injury. The pattern of work and study prior to graduation does not demonstrate a loss during those years. Absent any evidence of loss of capacity during that period I have not taken those years into account in determining loss. I have calculated a past loss of earnings from 1 January 2006 on the commencement of graduate work.
As at 2006, according to Mr Lee’s report, graduate after tax earnings for a CPS employee were approximately $815.67 per week.[93] This figure is subject to incremental increases of between 2.5% to 4% per year. Mr Lee has also factored in career progression[94] so that by 2019 the weekly nett earnings would be approximately $1374.[95] Attached as Schedule 1 to these reasons is a table extrapolating the relevant figures from Mr Lee’s schedules from 2006 onwards and forming the basis of my assessments of past and future earning capacity.
[93]Forensic Accountant report (n 53) 45: Annual figure $60,118.00 gross/$42,578.00 nett as per Schedule 1, Table 1.
[94]Ibid 18 [8.4, Table 6; 8.5].
[95]Ibid 45: Annual figure $103,507 gross/$71,724 nett as per Schedule 1, table 2.
4
5
0