Walter (a pseudonym) v Alcorn

[2024] NSWDC 216

District Court

New South Wales

Medium Neutral Citation:

Walter (a pseudonym) v Alcorn [2024] NSWDC 216

Hearing dates:

11 and 12 June 2024

Date of orders:

13 June 2024

Decision date:

13 June 2024

Jurisdiction:

Civil

Before:

Acting Judge Levy SC

Decision:

1. Verdict and judgment for plaintiff in the sum of $1,021,300, including prejudgment interest;

2. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned after 3 months from today’s date unless otherwise ordered;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

DAMAGES – assessment of compensatory general damages and aggravated damages – claim of historical child sexual abuse – plaintiff sexually abused by defendant on multiple occasions between the ages of 5 and 6 years

Legislation Cited:

Courts Suppression and Non-publication Orders Act 2010 (NSW), s 6; s 7; s 8; s 9; s 10; s 12.

Cases Cited:

Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1

Najdovski v Crnojlovic [2008] NSWCA 175

Penrith City Council v Parks [2004] NSWCA 201

State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

Texts Cited:

Australian Bureau of Statistics Bulletin, November 2023

Category:

Principal judgment

Parties:

Walter, a pseudonym (Plaintiff)
John William Alcorn (Defendant)

Representation:

Counsel:
Mr C Simpson (Plaintiff)
Defendant not represented

Solicitors:
Sommerville Laundry Lomax Solicitors (Plaintiff)
Defendant not represented

File Number(s):

2023/00197314

Publication restriction:

A non-publication order applies to the name of the plaintiff and non-professional witnesses.

Judgment

Non-publication order

1. These reasons relate to the plaintiff’s claim for damages for historical child sexual abuse. At the commencement of the hearing a non-publication order was made to prohibit publication of the name of the plaintiff and the names of non-professional witnesses or persons identified in the evidence. Accordingly, the plaintiff has been assigned the pseudonym of “Walter”: Courts Suppression and Non-publication Orders Act 2010 (NSW); s 6, s 7, s 8, s 9, s 12. There is no order restricting publication of the name of the defendant.

Nature of case

2. The plaintiff is now aged 38 years. He brought these proceedings claiming compensatory common law damages, aggravated damages and exemplary damages in respect of a series of sexual assaults that the defendant, John William Alcorn, as an adult, committed upon him on multiple occasions between 1991 and 1992, when the plaintiff was aged between five and six years.

3. The defendant, who has been described as a serial paedophile, is presently serving an 8-year term of imprisonment for the sexual offending that he perpetrated on the plaintiff, and on other vulnerable persons.

4. On 19 December 2023, when the defendant was represented by a solicitor, he consented to judgment being entered against him in this case, with damages to be assessed. It appears that the defendant has some property, as may be inferred from the fact that he has issued a person with an operative power of attorney whilst he serves his term of imprisonment.

5. These reasons concern the assessment of the plaintiff’s entitlement to compensatory damages in respect of the harm caused to him by the defendant’s criminal behaviour.

6. At the hearing, the plaintiff abandoned his claim for exemplary damages as the defendant has been sentenced to a substantial term of imprisonment for his criminal misdeeds. In those circumstances, notwithstanding that he has acted with disgraceful and contumelious disregard for the plaintiff’s rights, it would be inappropriate to make an additional award for exemplary damages where he has already received significant public condemnation for his actions.

Evidence overview

7. The plaintiff tendered a court book which was marked Exhibit “A”, Tabs 1 – 8, pp 1 – 86. The plaintiff’s evidence was given in the form of an affidavit affirmed on 28 May 2024. That affidavit was supported by three compendious volumes of annexed medical and other records in the series pages 1 – 1275.

8. The court book contained an affidavit from the plaintiff’s solicitor setting out the history of service of relevant documents on the plaintiff at the Long Bay Correctional Facility: Exhibit “A”, Tab 5, pp 44 – 57. That affidavit also identified the fact that the defendant’s solicitor had ceased to act for him on 19 April 2024.

9. The plaintiff’s case was supported by an extensively detailed expert report dated 30 October 2023 from Dr Chris Rikard-Bell, a consultant adult, child, and family psychiatrist: Exhibit “A”, Tab 6, pp 58 – 73.

Facts

10. The plaintiff was a vulnerable child at the time he as abused by the defendant. The factual basis of the plaintiff’s claim is in essence set out in his statement of claim, as follows:

1. In about 1991, the defendant sexually assaulted and abused the plaintiff without his consent.

1. During this period, the plaintiff was aged about 5 years;

2. On four (4) occasions in or about 1991, the defendant visited the home of the plaintiff in [location redacted] New South Wales and collected the plaintiff in a [redacted] panel van with registration number [redacted] (“the van”). On each occasion the defendant drove the plaintiff to the intersection of [redacted] and stopped the vehicle. Whilst the plaintiff was sitting in the front passenger seat of the vehicle, the defendant reached across from the driver side of the vehicle and placed his left hand on the plaintiff’s penis until erect. The defendant then removed the plaintiff’s erect penis from inside the plaintiff’s shorts with his right hand and performed an act of oral sex on the plaintiff for approximately 20 – 30 minutes.

2. In or about 1992, the defendant sexually assaulted and abused the plaintiff without his consent.

1. During this period, the plaintiff was aged about 6 years;

2. On three occasions in or about 1992, the defendant visited the home of the plaintiff at [location redacted] New South Wales and collected the plaintiff in the van. The defendant then drove the plaintiff to the intersection of [redacted] and stopped the vehicle. On the first occasion, whilst the plaintiff was sitting in the front passenger seat of the vehicle, the defendant reached across from the driver side of the vehicle and placed his left hand on the plaintiff’s penis until erect. The defendant then removed the plaintiff’s erect penis from inside the plaintiff’s shorts with his right hand and performed an act of oral sex on the plaintiff for approximately 10 – 15 minutes. The defendant then exposed his erect penis, took hold of the plaintiff’s right hand, and placed it on the defendant’s penis and forced the plaintiff to stroke it for about one (1) minute. The defendant then begun to masturbate himself in the presence of the plaintiff until he ejaculated into his left hand. On the second and third occasion, the defendant performed oral sex on the plaintiff, but did not place the plaintiff’s hand on his penis or masturbate. On the third occasion, after driving the plaintiff home, the defendant entered the plaintiff’s bedroom while the plaintiff was in bed, pulled down the plaintiff’s pants and began to perform oral sex on the plaintiff until interrupted by the plaintiff’s stepsister [name redacted].

11. The plaintiff had learning difficulties, and he had a history of difficult family circumstances. As such, he was a vulnerable child. The defendant was able to carry out his abusive acts on the plaintiff because he was able to obtain access to the plaintiff in light of his friendship with the plaintiff’s stepfather. As a result of that injurious exposure, the plaintiff has been left with the feeling that his mother and his stepfather had betrayed him when he was a child in their care.

12. Those feelings, and the underlying abusive conduct of the defendant, have adversely afflicted the plaintiff’s life to a substantial degree. They have had a major deleterious effect on the plaintiff’s progress through his childhood and adolescent years, and those affects have continued into his adult years. He struggled with his schooling, and he left school before completing Year 10. Dr Rikard-Bell has comprehensively detailed the stressors that have had an adverse impact on the plaintiff. He conveniently summed up the relevant factual background as follows:

“… your client suffered  serious psychiatric injuries as a result of sexual assaults he was subjected to as a child by Mr John Alcorn who was the close friend of [the plaintiff’s] stepfather, [name redacted], who is now deceased. The sexual assaults occurred in or about 1991 to 1992 when [the plaintiff] was aged 5 and 6 years old. At the time, he was residing with his mother and stepfather and claims his childhood, adolescence and adult life were adversely affected leading to substance use, self-harm and criminal behaviour. He suffers with low self-esteem, worry, depression and aggressive outbursts. He has had difficulties maintaining healthy relationships and difficulty with employment. [The plaintiff] left school in Year 9 and his employment history has been poor. There may have been some psychological treatment received shortly after the assaults for a period of less than 12 months after the assaults were discovered and disclosed by his stepsister. In 1998 [the plaintiff] was diagnosed with depression at the age of 12 and was admitted to [name redacted] Adult Mental Health unit. There have been multiple admissions to drug and alcohol clinics throughout his adolescence and adulthood.”

13. The annexures to Exhibit “A” document and chart the plaintiff’s numerous mental health facility admissions which followed those events, including admissions on account of his suicidal thoughts and his actual attempts at suicide.

14. Dr Rikard-Bell’s diagnosis of the plaintiff’s post abuse mental health problems included a persistent depressive disorder, a dependent personality disorder with antisocial features and a substance abuse disorder. He related those problems to the defendant’s abuse superimposed on the plaintiff’s underlying vulnerabilities. He expressed the opinion that the events in question had a materially contributing effect of the development of the plaintiff’s psychiatric conditions. He expressed the view that the plaintiff’s limited progress through his schooling, his employability, and his unsuccessful attempts at family life have been adversely affected by those underlying events. Another adverse consequence has been the plaintiff’s resultant anti-social behaviours, which have led to him being incarcerated for extended periods. As a result, the plaintiff has limited employability and requires extensive psychological and psychiatric treatment, including with medication.

15. The defendant’s sexual abuse of the plaintiff has led to the plaintiff following a dissolute course in his life. That course of adversity has been exacerbated by his low intelligence, his language difficulties, his hearing difficulties, and his learning difficulties. His cognitive function has been assessed as being in the low normal range.

16. Despite some earlier attempts at counselling, the plaintiff has for many years endured the unmet need for psychiatric and psychological assistance. As a result, he became involved in antisocial criminal behaviour, which initially led to his involvement with the juvenile justice system, and later, with the adult correctional institutions. He has had psychotic episodes from drug abuse. On the positive side, more recently, he has managed to keep himself out of prison the last four years.

17. The described circumstances justify the plaintiff being awarded substantial compensatory damages.

18. The plaintiff is also entitled to an element of aggravated general damages for a confluence of reasons, as follows.

19. He suffered multiple sexual assaults by the defendant over a period of about two years at a very young and vulnerable age. This occurred at a time which caused him confusion and difficulty comprehending what was occurring and he was unable to articulate the facts to those who could have protected him from the defendant’s predatory behaviour. The defendant was at the time a trusted adult who had ingratiated himself with the plaintiff’s family in order to obtain illicit access to the plaintiff for the reprehensible purpose of sexually abusing him. This placed the defendant’s sexual offending into the upper range of seriousness. The most recent episode of offending occurred in the plaintiff’s bedroom, where he ought otherwise to have felt safe and secure from such predatory conduct. The plaintiff has consequently suffered significant adverse impact on his mental health, and he has had to endure significant social problems.

20. As a final aggravating insult to the plaintiff, in addition to injury, on 11 June 2024, when the defendant appeared at the hearing by means of an AVL connection from prison to the court because he is presently serving a sentence as punishment for his offending, laughingly, he denied that he knew the of the plaintiff. That was a bizarre and offensive statement given that earlier, he had acknowledged the proceedings, and had instructed a solicitor to consent to judgment being entered against him, with damages to be assessed. It was plain at that time that the defendant had no relevant contribution to make to the just determination of these proceedings, and he was therefore excluded from further participation in the hearing.

Assessment of damages

21. My assessment of the plaintiff’s damages now follows.

General damages and aggravated general damages

22. The plaintiff’s impaired life experiences, as described above, have substantially detracted from what ought otherwise to have been an unhindered ability to enjoy the amenity of his life. For those described egregious losses, including the repeatedly aggravated circumstances of the defendant’s abusive actions, I assess the plaintiff’s general compensatory damages, including an element of aggravated damages (assessed modestly to avoid overlapping or double compensation), at $400,000.

Interest on past general damages

23. The plaintiff is entitled to interest on his past general damages: Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1, at p 22. I apportion $250,000 of the award for general damages to past pain, suffering, and the loss of the enjoyment and the amenity of life. I assess interest on that component of $250,000 at the rounded down half rate of 3 per cent over 33 years, namely $247,500.

Future medical and treatment expenses

24. The plaintiff has not made any claim for past out-of-pocket expenses.

25. Dr Rikard-Bell has set out a recommended regime for the future treatment of the plaintiff’s mental health issues by reference to the following elements:

1. 50 psychological treatment sessions for drug and alcohol counselling at $300 per session, which, without discounting, is costed at $15,000;

2. 50 sessions with a psychologist for cognitive behavioural therapy, which without discounting, is also costed at $15,000;

3. Pharmaceutical prescriptions for required anti-depressant medication at $50 per month or $600 per annum for 5 years. This is the equivalent of $11.54 per week, which, when projected on the 3 per cent actuarial tables (x 242.6), amounts to $2,800.

26. The total of those individual amounts is $32,800. In my view, as those treatment recommendations are for relatively short-term periods, they do not require discount other than by rounding off the calculations for sessional treatments for the possibility of overlap. I therefore assess the plaintiff’s damages for future treatment expenses in the rounded down sum of $30,000.

Future economic loss including superannuation entitlements

27. For simplicity, the plaintiff makes no claim for past economic loss although there is a reasonable basis for argument that his periods of non-earnings due to his periods of incarceration were to a material degree due to his sexual abuse related dissolute lifestyle. That abuse was, to a material degree, a source of impairment to his future earning capacity, and he therefore makes that claim.

28. With regard to the plaintiff’s claim for future loss of earning capacity, I accept the opinion of Dr Rikard-Bell to the effect that the plaintiff does not have the ability to compete for employment on the open labour market. He is without skills and lacks educational qualifications. Those matters, together with his psychological problems, do not auger well for continuous future employment.

29. I accept the submission that but for the deleterious effects of the defendant’s abusive sexual assaults, the plaintiff would most likely have completed his education to Year 10 School Certificate standard and he would therefore have been a reasonably well placed competitor on the labour market for regular stable employment remunerated at the approximate level of average weekly earnings.

30. In contrast to that position, in recent times, he has been employed irregularly. Since February 2024 he has been working in a low skill level job as a laundry assistant on a casual basis. His last payslip shows gross but irregular weekly earnings of $740.62 per week: Exhibit “A”, page 72. This is contrast to the latest statistical figure for average weekly earnings for males, namely, $2076.60 gross, as shown in the Australian Bureau of Statistics Bulletin published in November 2023.

31. Whilst that difference in figures does not necessarily provide an accurate comparator for assessing the plaintiff’s probable loss of earning capacity, it does show that a significant gap exists between his actual earnings and what might have otherwise been his earnings. That said, there are many uncertainties and imponderables that must be considered and taken into account when assessing the plaintiff’s claim for future loss of earning capacity.

32. In those circumstances the plaintiff submits, correctly in my view, that where the projection of a precise net weekly loss of earnings cannot be reasonably identified, as is the case here, the fairest and most appropriate way for compensating him for his loss of earning capacity over the next 29 years of his working life to age 67 years, is to award him a discounted buffer lump sum: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, at [72].

33. In that regard, the plaintiff seeks a buffer amount of $300,000. I consider that amount to be a modest and most reasonable basis for the required assessment and I allow that element of the claim.

34. In addition to that amount, the plaintiff seeks compensation for the loss of compulsory employer funded superannuation benefits at the conventionally assessed rate of 14.5 per cent: Najdovski v Crnojlovic [2008] NSWCA 175.

35. That calculation, based on an assessed loss of earning capacity of $300,000, yields the amount of $43,800.

36. I therefore assess the plaintiff’s future loss of earning capacity and future loss of employer funded superannuation benefits in the combined sum of $343,800.

Summary of damages assessment

37. My assessment of the plaintiff’s damages is summarised as follows:

(a) General and aggravated damages	$400,000
(b) Interest on past general damages	$247,500
(c) Future medical and treatment expenses	$30,000
(d) Future economic loss and superannuation	$343,800
Total	$1,021,300

Disposition

38. The plaintiff has established his entitlement to an award of damages in the amount of $1,021,300.

Costs

39. As the plaintiff has succeeded in obtaining a judgment in his favour as against the defendant, he should therefore have an order for the defendant to pay his costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

40. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $1,021,300, including pre-judgment interest;

1. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless otherwise ordered;

2. The exhibits may be returned after 3 months from today’s date;

3. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 13 June 2024