XY v Featherstone

[2010] NSWSC 1366

CITATION:	XY v Featherstone [2010] NSWSC 1366
HEARING DATE(S):	16 August 2010, 17 September 2010
JUDGMENT DATE :	26 November 2010
JUDGMENT OF:	McCallum J
DECISION:	I order that judgment be entered for “XY” against Mr Featherstone in the sum of $2,405,912. I order Mr Featherstone to pay “XY”’s costs of the proceedings as against Mr Featherstone, including all reserved costs.
CATCHWORDS:	TORTS - assessment of damages - psychiatric injuries following years of sexual abuse by a "special friend" while the plaintiff was a ward of the State
LEGISLATION CITED:	Civil Liability Act 2002 Crimes (Sentencing Procedures) Act Crimes Act 1900 Evidence Act 1995 Uniform Civil Procedure Rules
CATEGORY:	Principal judgment
CASES CITED:	Featherstone v R [2008] NSWCCA 71 R v Welsh (1996) 90 A Crim R 364 Varmedja v Varmedja [2007] NSWDC 385 Varmedja v Varmedja [2008] NSWCA 177 “AM” v “KW” [2005] NSWSC 876 McCrae v The Boy Scout Association [2007] NSWDC 196 Lamb v Cotogno (1987) 164 CLR 1 New South Wales v Riley (2003) 57 NSWLR 496
PARTIES:	"XY" Gary Featherstone
FILE NUMBER(S):	SC 2007/265041
COUNSEL:	Mr S. Kalfas SC and Mr S Moffet (Plaintiff)
SOLICITORS:	Walker Legal (Plaintiff)

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCallum J

26 November 2010

265041/2007 - “XY” v GARY FEATHERSTONE

JUDGMENT

The name of the plaintiff and his wife have been anonymised in this judgment. There is a non-publication order in respect of the real names of those people.

1 McCALLUM J: “XY” was made a ward of the State when he was eight years old. He was sent to a government home, Karril Cottage, at the age of ten. Over the following years until he turned 16, he spent most of his time in boys’ homes, which he described as brutal, lonely places. On weekends, government officers entrusted him to the care of a “special friend”, Mr Gary Featherstone. It is not clear how Mr Featherstone manoeuvred himself into that role, or what checks were undertaken on him.

2 “XY” was eleven when he first went to Mr Featherstone’s house. On the first night he stayed there, Mr Featherstone showed him a pornographic movie and then took the boy into his own bed where he made him perform oral sex and then had anal sex with him. Mr Featherstone sexually assaulted “XY” repeatedly over many years thereafter and is now serving terms of imprisonment for some of those offences, together with offences committed against other boys.

3 “XY” commenced these proceedings in 2006 claiming damages against Mr Featherstone and the State of New South Wales for the injuries and disabilities suffered by him as a result of those events. The proceedings against the State of New South Wales were settled in February 2010 for the sum of $795,000 inclusive of costs. “XY” received the benefit (after the deduction of legal costs) of $557,500 from that settlement.

4 The proceedings then continued against Mr Featherstone alone but he has not participated in the hearing. An application by “XY” for separate determination of the question whether his claim was statute-barred was listed for hearing on 18 March 2010. On 1 March 2010, Mr Featherstone wrote to the Court and to the solicitors for “XY” stating that he no longer wished to contest the claim. On the date scheduled for the hearing of the separate question, after hearing from Mr Featherstone by video-link with the jail and satisfying myself as to his position, I directed that verdict and judgment be entered for “XY” against Mr Featherstone forthwith, reserving the assessment of damages.

5 This judgment assesses “XY”’s damages against Mr Featherstone.

Claims made by “XY”

6 “XY” claims damages, including aggravated damages, for trespass and personal injury on the grounds set out in the amended statement of claim filed 23 March 2010 and the amended statement of particulars (undated). In short, it is claimed that while “XY” was a ward of the State, Mr Featherstone frequently and repeatedly intentionally sexually assaulted and sexually abused him.

7 As the conduct complained of is sexual assault or other sexual misconduct, it is excluded from the operation of the Civil Liability Act 2002 pursuant to s 3B(1) of the Act. Accordingly, damages are to be assessed in accordance with the common law.

8 Exemplary damages are not sought, as Mr Featherstone has been punished within the criminal justice system and is presently serving a term of imprisonment for offences that include some of the conduct complained of in these proceedings.

9 The injuries complained of by “XY” are:

a) sexual assault;
b) post-traumatic stress disorder;
c) anxiety;
d) depression; and
e) obsessive compulsive disorder.

10 Those injuries are alleged to have given rise to a lengthy series of disabilities with crippling effect in almost every aspect of “XY”’s daily life.

The claim for aggravated damages

11 Before considering the detail of “XY”’s claims, I should record a complaint communicated to the Court by Mr Featherstone. After judgment had been entered against him, Mr Featherstone wrote to the Court asking that the following matter be noted:

“As soon as I indicated to “XY”’s lawyer I would not defend the case now, the word “aggravated” (assault) was added to the compensation claim.”

12 Mr Featherstone maintains that the word “aggravated” was never in any statement or evidence in Court and he regards the use of that term as wrong and deceitful, citing the fact that he had an ongoing relationship with “XY” even when “XY” was an adult.

13 Mr Featherstone’s complaint appears to refer to the occasion on which the statement of claim was amended so as to seek aggravated and exemplary damages (the claim for exemplary damages was not ultimately pressed, for the reason already explained).

14 It is correct that leave to make that amendment was given on 18 March 2010, the same day on which judgment was entered against Mr Featherstone. However, the amendment should not have come as any surprise to Mr Featherstone. Notice of the application for leave to amend was served on him on 12 February 2010, together with a bundle of material relied upon in support of the application for separate determination of the limitation question. It was after service of that material that Mr Featherstone indicated he no longer wished to defend “XY”’s claim. Accordingly, I am satisfied that it is appropriate to consider the claim for aggravated damages.

Evidence as to the conduct complained of

15 Although the hearing proceeded as an undefended assessment, it is necessary to make findings as to the conduct complained of and to determine whether that conduct caused injuries and disabilities as alleged by “XY”.

16 “XY” gave evidence about the events the subject of his claim in the form of an evidentiary statement, which he adopted on oath in the witness box. He impressed me as an intelligent and sincere man. I have no difficulty accepting his evidence. It should be noted, further, that Mr Featherstone pleaded guilty on 12 July 2006 to an indictment containing twelve counts of sexual assault, including four offences against “XY” between January 1985 and July 1987. At the time of his sentence, Mr Featherstone also asked the Court to take a further 12 offences into account on a Form 1 in accordance with the procedure contemplated in s 33 of the Crimes (Sentencing Procedures) Act. Five of those further offences were also offences committed against “XY”.

17 Each of the counts on the indictment was an offence contrary to s 78K of the Crimes Act 1900 (since repealed) of homosexual intercourse with a male over the age of ten years and under the age of 18 years. The first two counts were based on the first occasion when “XY” stayed with Mr Featherstone, to which I have already referred. Count one alleged that Mr Featherstone placed his penis in “XY”’s mouth when “XY” was aged 11 years. Count 2 alleged that Mr Featherstone placed his penis in “XY”’s anus when “XY” was aged 11 years.

18 The third and fourth counts related to an occasion when Mr Featherstone sucked “XY”’s penis and placed his own penis in “XY”’s anus. Those offences were committed on “XY”’s 14^th birthday.

19 Mr Featherstone was originally sentenced in the District Court for those and eight other offences (involving different boys) to an aggregate sentence of 16 years and 11 months imprisonment with an effective non-parole period of 12 years and 11 months. An appeal against the severity of those sentences was allowed by the Court of Criminal Appeal and Mr Featherstone was re-sentenced to an aggregate term of 12 years and 7 months with an effective non-parole period of 7 years: Featherstone v R [2008] NSWCCA 71.

20 In correspondence tendered at the hearing before me, Mr Featherstone claimed that the Court of Criminal Appeal contradicted the “original comments” of the sentencing judge. If it was meant by that remark to assert that the factual findings of the sentencing judge were overturned, that is incorrect. The Court of Criminal Appeal simply remarked (at [49]) that it was not necessary to refer to his Honour’s factual findings since the Court of Criminal Appeal was in as good a position to assess the evidence. The ground on which the appeal was allowed did not relate to any revised view as to the seriousness of the conduct alleged, but only to the legal question whether Mr Featherstone should have been sentenced according to sentencing patterns at the time the offences were committed, rather than in accordance with the higher range of sentences that had emerged by the time he was charged.

21 Importantly, the evidence that had been tendered at the sentence hearing was a statement of agreed facts. I am accordingly satisfied that I may confidently proceed on the basis that the contents of that evidence (as summarised in the judgment of Bell J in the Court of Criminal Appeal) are uncontroversial. Her Honour summarised the facts relating to the offences against “XY” as follows:

“When PP was a young boy his parents separated and he and his brother, SP, the third complainant, were made wards of the State and placed in a boys’ home. Ultimately the two were placed in a boys’ home.

The applicant offered to take boys from this Boys’ home on outings in his capacity as a “special friend”. In early 1985 PP and another lad decided to run away from the Boys’ home. They went to the applicant’s home. The applicant told PP that if he behaved himself at the Boys’ home and attended school he would take him on outings. He gave PP a tour of his home, pointing out his collection of computer games and showing him a cupboard containing confectionary. Later that day the applicant returned the two boys to the Boys’ home.
The next weekend the applicant took PP and the other boy out for the first time. They watched videos. After this the applicant said that he had a “special movie”. He played a suggestive movie after which he told PP that he could sleep with him in his single bed. Once in bed the applicant embraced PP, rubbing PP’s penis (offence five on the Form One). The applicant pushed PP’s head down onto his penis, placing it in PP’s mouth (count seven). After this the applicant reached for some cream and rubbed it around PP’s scrotum, telling him that it was okay. He then commenced to push his penis into PP’s anus, which caused a degree of pain (count 8). PP told the applicant that it was hurting him, and the applicant withdrew and began rubbing his penis between PP’s buttocks, telling him that what they were doing was secret (offence six on the Form One).

Later that year staff at the Boys’ home took steps to restrict the contact between PP and the applicant. However PP, who disliked the strictness and discipline of the Boys’ home and who enjoyed the attention and gifts that he received from the applicant, skipped school from time to time and visited the applicant. On one occasion the applicant took PP to a nudist camp. During the visit he fondled PP’s penis while they were swimming naked in a dam (offence seven on the Form One). After this the applicant took PP to the shower block and rubbed soap around PP’s anus and attempted to penetrate him with his penis (offence eight on the Form One).

The applicant arranged to see PP on his fourteenth birthday. They purchased take-away food and went to the applicant’s home. After dinner the applicant gave PP a watch and a Rambo-style hunting knife. They played a videogame and after this the applicant sucked PP’s penis (count nine) and had anal intercourse with PP (count 10). The following day the applicant drove PP back to the Boys’ home, dropping him a few blocks from the entrance. On the way he stopped the car near the Lane Cove National Park and put his penis in PP’s mouth (offence nine on the Form One).

Contact between the applicant and PP continued for another few years, during which time PP was either living in a State home or with the applicant.”

22 “XY”’s evidentiary statement in these proceedings establishes to my satisfaction, on the balance of probabilities, that the offences charged were not the only offences committed against him by Mr Featherstone. “XY” stated that the sexual abuse continued for around four or five years. He estimates that Mr Featherstone sexually abused him on at least 300 occasions. He gave detail of some of those occasions, stating that the last time he was sexually assaulted by Mr Featherstone was on the day he (“XY”) turned 16.

23 “XY” said that he did not inform authorities about Mr Featherstone’s conduct during that time because he needed the companionship and affection offered to him by Mr Featherstone. He said:

“His house was like a paradise for kids. It was full of games. He let us have food, lollies and soft drink whenever we wanted them. He gave me presents throughout the time that he sexually abused me. These included a tennis racket and a watch. Although I was completely shocked and sickened by his sexual abuse, Featherstone offered me some care and attention that I had been longing for. Life with him was the lesser of two evils.
By contrast, Karril Cottage was a harsh and often brutal place. I received no attention, love or even pleasant conversation from adults at that place. They were unapproachable. They were no substitute for family.”

Injuries and disabilities caused by Mr Featherstone’s assaults

24 The effects of Mr Featherstone’s sexual abuse on “XY” are described in a series of reports by Jonathan Phillips, Consultant Psychiatrist. To the extent that Dr Phillips’ reports record the history provided to him by “XY”, the hearsay rule does not apply to that evidence: s 60(1) of the Evidence Act 1995; R v Welsh (1996) 90 A Crim R 364. I have accordingly taken that evidence into account in reaching my findings as to the events underlying “XY”’s claim, making due allowance for the fact that “XY” has not been cross-examined on that material.

25 Dr Phillips describes the debilitating impact of Mr Featherstone’s conduct on “XY”’s psychiatric health from an early age. “XY” began to lacerate himself within six months of the first episode of abuse (when he was aged 11). He felt as though he was “releasing pain” by cutting himself. He mainly cut his arms, but occasionally also cut his penis. He hoped that with the damage to his penis, the assaults would stop. He thought about cutting his eyes but realised he might damage his vision.

26 A male youth worker began to take photographs of “XY” in his underwear at around the same time. Unsurprisingly, “XY” became increasingly withdrawn during that period. He ran away from the boys’ home on many occasions with the intention of avoiding adult males. He began to use illicit substances. His school performance deteriorated. He lost trust in adults, including his mother, whom he had hoped for some time would take him out of the boys’ home. Despite his requests, she never did.

27 “XY” came to the adverse attention of police within six months of meeting Mr Featherstone. Over the following years, he was charged with a series of drug and other offences. He told Dr Phillips he believes he has faced approximately 20 charges during that time. He has spent some time in jail as a result.

28 “XY”’s evidence before me was that he left jail for the last time in 2001. In June 2002, he met [his wife] to whom he is now married. He states that she has saved him from a much worse fate.

29 [His wife] and “XY” had a daughter in 2003 but she died of pneumonia (apparently contributed to by a congenital disorder) in November 2004. “XY” and [his wife] subsequently married and have had two more daughters. Their relationship suffered some difficulties in 2008 when “XY” tried to kill himself (not for the first time) and [his wife] insisted that he obtain some treatment. They have since resumed their relationship.

30 “XY” said, however, that it remains impossible for him to have “normal relations”. He will not bathe or dress his daughters or change their nappies. He said:

“It puts my anxiety through the roof. It’s not like I get a feeling that I would do anything, it’s more that it feels that I am invading their private space and I wouldn’t want them to ever feel like the way I do.”

31 “XY” said that his wife cannot work because she cannot leave the girls with him and he will not let them go to day-care. He currently receives a disability pension, whilst his wife receives either a parenting pension or unemployment benefits (he was not sure which).

32 The psychiatrist, Dr Phillips, stated that “XY” is best described as having a chronic post-traumatic stress disorder with additional features of depression, general anxiety and compulsive behavioural rituals in the context of a personality disorder notable for borderline features. I accept that evidence.

33 I am satisfied on the balance of probabilities that the conduct of Mr Featherstone was the primary cause of that condition. Dr Phillips identified two other possible causes for “XY”’s present condition, namely, his early adverse experiences within his biological family and the death of his first child, Michaela. I accept that those matters may have contributed to “XY”’s difficulties but I have no doubt that a substantial cause and indeed the main cause of his present condition is the conduct of Mr Featherstone.

34 I accept, as thought by Dr Phillips, that “XY” undoubtedly suffered considerable psychological trauma in his early years as a result of parental conflict, the separation of his parents before he was seven years old and subsequent parental neglect. “XY” described his early childhood in compelling terms in his evidentiary statement in these proceedings. He was one of four children, all boys. He remembered that the family was poor and that his father did not have regular work. He said the house had very little furniture and they sometimes went without meals.

35 After his parents separated, each parent was unable to cope with “XY” and his brothers. “XY” and one of his brothers were eventually brought before the Children’s Court and asked who they wanted to live with. He said in the evidence before me: “I remember being unable to answer the question. I wanted to live with both my parents and my brothers in the one home. So I did not give an answer at all. [The brother] and I were made wards of the State.”

36 After being placed in State boys’ homes, “XY” missed his mother and asked if he could see her. Arrangements were made so that he saw her at Christmas in 1983 (when he was 10). However, he subsequently lost contact with her. He and his brother were supposed to see her in May 1984 for the school holidays but she did not make contact with DOCS, so they could not go. By the end of 1984 he missed her terribly, but was being told by DOCS that they were still trying to get him reunited with her. It was in early 1985 that he was introduced to Mr Featherstone.

37 It is not difficult to accept that those earlier events eroded “XY”’s psychological resilience, as described by Dr Phillips. That was the very circumstance that enabled Mr Featherstone to keep “XY” in a sexualised relationship, described by Dr Phillips in the following terms:

“In brief he offered the child some degree of affection, an escape from institutional life, lodging, food, presents and money and he supported the child in a number of recreational activities. This constituted a process of grooming that was appealing to the child, to the extent that the child believed he was being offered affection and even love. Yet at the same time, “XY” had to pay for affection by accepting the sexual abuse perpetrated by Featherstone.”

38 Dr Phillips concluded, and I accept, that the major damage done to “XY” was caused by the sexual abuse perpetrated by Mr Featherstone. As frankly acknowledged by Dr Phillips, it is difficult in retrospect to estimate, against the awful history I have recited, what “XY”’s outcome would have been had he not suffered that sexual abuse. On balance, however, I am satisfied that he would probably have been able to have a relatively normal life, including regular employment, but for that abuse.

39 As already noted, “XY” impressed me as an intelligent and articulate man. Dr Phillips formed the same view, and thought that he should have been able to attain at least his School Certificate and some sort of trade qualification. It seems likely that he would also have been able to obtain employment as a sports coach or fitness trainer. In that respect, I note that he has played representative football and describes himself as having been a good tennis player. He was able to obtain regular employment as a tennis coach for a period at the age of eighteen, but said that Mr Featherstone then “wanted to get involved” to train children as well. That was unacceptable to “XY”, so he quit.

40 As to the contributing effect of the death of Michaela, I have no doubt that was a significant further psychological assault. By that time, however, “XY”’s psychiatric difficulties were manifest and well entrenched. Dr Phillips undertook a careful review of previous psychological and psychiatric reports. That analysis reveals a chronology of the development of psychological symptoms that strongly supports the contention that the major cause of “XY”’s difficulties was the conduct of Mr Featherstone.

General damages

41 In my view, it follows from the findings I have made that “XY” is entitled to an award of general damages at the high end of the range. His present psychological symptoms were described by Dr Phillips in the following terms:

“He finds it hard to relate in any degree of intimacy with his children (bathing, toilet rituals), he remains avoidant in his behaviour (he would prefer to live a totally isolated lifestyle), he cannot tolerate being touched by others (particularly men), he is involved in ritualistic checking (to promote safety), he shaves his torso and genitals (for bizarre and perhaps quasi-psychotic reasons), he can only sleep in certain positions at night (if he does not he has forced memories of the sleeping arrangements with Featherstone), he cannot tolerate intimacy, he is unable to watch adult themes on television, he has significant problems brushing his teeth (because of forced memories of oral sex perpetrated by Featherstone), he is unable to undress in the company of his wife, he has recurrent nightmares (linked thematically with the sexual abuse by Featherstone) and he sleeps with his feet beyond the blanket and separated (to avoid memories of Featherstone’s sexual actions, particularly Featherstone forcing him to bring his legs together during acts of sex). The plaintiff’s use of heroin extended into adult life (with closely associated criminal behaviour) but this is no longer an issue.

42 The likely debilitating impact of those symptoms is manifest. I am satisfied that “XY” has suffered greatly over a lengthy period and remains terribly impaired in many aspects of his life as a result of the assaults.

43 Counsel for “XY” drew my attention to a number of decisions in which general damages for sexual assault have been assessed, including Varmedja v Varmedja [2007] NSWDC 385 (upheld on appeal at [2008] NSWCA 177); “AM” v “KW” [2005] NSWSC 876 and McCrae v The Boy Scout Association [2007] NSWDC 196. Of those, the one that has the most relevance to the present case is the decision of Johnstone DCJ in McCrae, in which the Court awarded $300,000 by way of general damages arising out of sexual abuse over several years of a boy scout by a scout leader.

44 Care must be taken when comparing individual cases for the purpose of assessing damages. Nonetheless, I accept, as submitted on behalf of “XY”, that the psychiatric harm inflicted upon “XY” appears to have been more serious and more lasting than in the case of McCrae.

45 Separately, it is necessary to consider the factors relied upon on behalf of “XY” in aggravation of the compensatory damages claimed by him. Aggravated damages are awarded for injury to the plaintiff’s feelings “caused by insult, humiliation and the like”: Lamb v Cotogno (1987) 164 CLR 1 at 8.6.

46 As noted by Hodgson JA in State of New South Wales v Riley (2003) 57 NSWLR 496 at [130], in cases (such as the present) where damages for injury to feelings is an aspect of the ordinary compensatory damages to which the plaintiff is entitled, it is important in assessing a claim for aggravated damages to avoid double counting. Hodgson JA there noted that it is extremely difficult to quantify damages for hurt feelings. His Honour stated that, in cases of hurt to feelings “caused by wrong-doing that goes beyond ordinary human fallibility”, the difficulty of quantifying such damages warrants an award towards the upper limit of the proper range so as to avoid the risk of under-compensating the plaintiff: Riley at [131]; Sheller JA agreeing at [9]; Nicholas J agreeing at [147].

47 Counsel for “XY” relied on a series of matters which he submitted went beyond ordinary human fallibility. First, and self-evidently, was the sexual abuse itself. Secondly, he relied upon the evident deception by Mr Featherstone of employees of the second defendant, the State of New South Wales. That there must have been such deception in order for the abuse to be perpetrated in the way it was is obvious.

48 The third matter was the contention that twice, after “XY” had moved and established a new life free of the abuse, Mr Featherstone pursued him. That claim is supported by the evidentiary statement of “XY”, in which he states that in 1987, he was sent to a place called Knights Hill at Robertson in New South Wales and that “somehow” Mr Featherstone found him there. Later that year, “XY” ran away from Knights Hill and, in due course, was taken in by a family from Wollongong whom he had met whilst at Knights Hill. “XY” stated that, again, “after a few weeks of this new life however Featherstone found me”. I am satisfied that those events would have been extremely distressing to “XY” as a child.

49 The fourth matter of aggravation relied upon derives from paragraph 51 of “XY”’s evidentiary statement, which states:

“Featherstone said that he would get me a job but he “sold” me to another paedophile, “Russell”. I was only with Russell for 6 to 8 weeks. He lived at Kogarah and worked at Turner Bros Curtains and furnishings at Kogarah. We did the curtains at the Powerhouse Museum, the conference centre at Darling Harbour and the John Hunter Hospital. He paid me cash. I did not know the deal about him being a paedophile. Russell said, “I paid for you and this is what I expected.” He molested me on a total of about 3 occasions…Featherstone continued to molest me during this period.”

50 Plainly, the so-called sale of “XY” by Mr Featherstone to another paedophile would have substantially aggravated the hurt to feelings inflicted upon him.

51 The fifth matter relied upon was the evidence given by “XY” that, apparently at a time when Mr Featherstone apprehended difficulties with the police, he sent a character reference for himself supposedly written by “XY” which he asked “XY” to endorse (see paragraph 79 of the evidentiary statement).

52 Finally, “XY” relied upon the fact that Mr Featherstone failed to admit his assaults when he first filed a defence in these proceedings, despite having pleaded guilty to and been imprisoned for some of the offences the subject of “XY”’s present claim.

53 I am satisfied on the balance of probabilities that each of those factors aggravated the hurt to feelings suffered by “XY”.

54 I consider that there should be an award of general damages, including aggravated damages, in the sum of $350,000. Although it is a difficult matter to quantify, I would allocate $250,000 of that sum by way of past general damages and $150,000 for future damages. “XY” is entitled to interest on the past amount at 2 percent for 25.5 years (from January 1985), giving $127,500 in interest.

Economic loss

55 Dr Phillips provided a separate report specifically addressing the issue of “XY”’s capacity to work. As to the past, Dr Phillips concluded that “XY” had a very low capacity to work from the time of the sexual abuse to present. As to future employment, Dr Phillips expressed the view that “XY” has extremely poor prospects of entering the open workforce and holding employment as a result of his complex psychiatric condition.

56 I accept that evidence. I have already referred to “XY”’s evidence that, when at the age of 18 he was able to obtain work as a tennis coach, Mr Featherstone wanted to get involved and that, as a result, “XY” left that position. I am satisfied that his capacity to obtain employment was insidiously undermined from an early age and that he is now effectively crippled by his psychiatric injuries.

57 As acknowledged in the submissions on behalf of “XY”, there are well-recognised difficulties in assessing the likely path of employment that “XY” would have followed, absent the abuse. I have little to go on beyond his evident intelligence and his apparently conscientious approach to parenting and housework at the present time. It must be acknowledged that, leaving aside his abuse at the hands of Mr Featherstone, “XY” had a difficult and deprived upbringing. Even so, having regard to his intelligence and evident resilience, I am satisfied that he would have obtained gainful employment but for the abuse.

58 Counsel for “XY” submitted that the appropriate measure of “XY”’s past economic loss is to adopt average weekly male earnings for the period that they are available and, thereafter, average weekly earnings. I accept that is an appropriate approach. I also accept, as submitted on “XY”’s behalf, that as a result of the conduct complained of in these proceedings, “XY” has never really been engaged in any significant employment and has been totally incapacitated for the whole of what would have been his working life to date.

59 On that basis, the calculations and supporting material provided on behalf of “XY” support an award of past economic loss from 1989 to 2010 in the sum of $724,593.

60 “XY” is entitled to interest on that sum. His legal representatives provided a calculation of interest in accordance with rule 36.7 of the Uniform Civil Procedure Rules which produced an amount of $655,899.

61 The material provided on behalf of “XY” also included a calculation of lost superannuation on wages since 1994 at the applicable rates throughout that period. That calculation produced a figure for lost superannuation in the sum of $45,069 together with interest at 9% for half that period in the amount of $34,477.

62 I am satisfied that “XY” is entitled to all of those amounts to compensate him for his past economic loss as a result of the conduct of Mr Featherstone.

63 As to future economic loss, on the strength of the opinion expressed by Dr Phillips to which I have already referred, I am satisfied that as a result of Mr Featherstone’s conduct, “XY” will probably never be engaged in gainful employment. On that basis, he is entitled to an award of future economic loss calculated at the current average weekly earnings rate.

64 The material provided on behalf of “XY” included a calculation of his future economic loss on that basis, assuming a retirement age of 67. The calculation was based on present average weekly earnings of $994.39. Applying a multiplier of 1038 and after a 15% reduction for vicissitudes, the calculations produced a figure of $877,353. Future superannuation on that figure at 9% is $78,961. I am satisfied that “XY” is entitled to those amounts to compensate him for his future economic loss as a result of the conduct of Mr Featherstone.

Claim under Griffiths v Kerkemeyer

65 “XY”’s claim included a claim for the voluntary assistance provided to him by his wife. I am not satisfied on the strength of his evidence that “XY” requires the assistance of his wife and that he would not otherwise be able to do the things she helps him do. In my view, his evidence amounted, in effect, to his saying that his wife assists him with certain activities and accompanies him when they go shopping and when he attends medical appointments. However, I am not satisfied that “XY” would not be able to do those things alone, although I accept that he would rather not.

Future out of pocket expenses

66 Dr Phillips expressed the opinion that “XY” will “at the very least” require 50 to 100 hours of psychotherapy followed by monthly revision until there is a substantial reduction in his symptoms. Accepting that as a minimum, I am satisfied, as claimed on behalf of “XY”, that he would require 125 hours of psychotherapy and that an allowance should be made for that treatment at $150 per hour, giving a total amount for initial treatment in the sum of $21,875.

67 I am further satisfied that there should be an allowance for monthly follow-up treatment over the next 24 years, as submitted on behalf of “XY”. The calculation provided on his behalf for the cost of that future treatment is $30,943 ($34.50 per week adopting the multiplier for 24 years using the 3 percent table).

68 In addition, “XY” takes “Avanza” to treat his condition. That medication costs him $40 every 15 days. On the same assumptions, that produces an amount of $16,742.

Conclusion

69 I assess “XY”’s damages against Mr Featherstone as follows:

Type of Damages	Amount
Past Economic Loss	$724,593
Interest on Past Economic Loss	$655,899
Past Superannuation	$45,069
Interest on Past Superannuation	$34,477
Future Economic Loss	$877,353
Future Superannuation	$78,961
General Damages (including aggravated damages)($250,000 by way of past damages)	$350,000
Interest on Past General Damages	$127,500
Future Out-of-Pocket Expenses	$69,560
TOTAL	$2,963,412

70 It is necessary to deduct from that sum the benefit obtained by “XY” (net of legal costs) from the settlement with the second defendant. An affidavit sworn by “XY”’s solicitor, Adam Court, on 18 August 2010 establishes that the amount to be deducted is $557,500. Taking a conservative approach, I think it is appropriate to deduct the whole of that amount from the damages assessed against “XY”, notwithstanding the fact that there may have been discrete damages occasioned by separate aspects of the treatment of “XY” at the hands of the State. Counsel for “XY” accepted that as an appropriate approach.

71 On that basis, I order that judgment be entered for “XY” against Mr Featherstone in the sum of $2,405,912.

72 I order Mr Featherstone to pay “XY”’s costs of the proceedings as against Mr Featherstone, including all reserved costs.

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