ZAB v ZWM

[2021] TASSC 64

[2021] TASSC 64

COURT:  SUPREME COURT OF TASMANIA

CITATION:                ZAB v ZWM [2021] TASSC 64

PARTIES:  ZAB
  v
  ZWM

FILE NO:  1918/2018
DELIVERED ON:  22 December 2021
DELIVERED AT:  Hobart
HEARING DATES:  26, 30 July 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Damages – Generally – Exemplary, punitive, aggravated and like damages – Aggravated damages – Assault and battery – Sexual abuse of son by father – Plaintiff's suffering exacerbated by defendant's conduct in years before trial.

Broome v Cassell& Co Ltd [1972] AC 1027; De Reus v Gray [2003] VSCA 84, 9 VR 432, referred to.

Aust Dig Damages [1009]

Damages – Particular awards of general damages – Tasmania – Assault and battery – Plaintiff sexually abused by father when aged 10 to 16, over 40 at trial – General damages of $300,000 for non-economic harm, including aggravated damages.

Aust Dig Damages [1173]

REPRESENTATION:

Counsel:
             Plaintiff:  M Collins QC, E A Bennett, C Mackie
             Defendant:  No Appearance
Solicitors:
             Plaintiff:  Dobson Mitchell & Allport

Judgment Number:  [2021] TASSC 64
Number of paragraphs:  128

Serial No 64/2021

File No 1918/2018

ZAB v ZWM

REASONS FOR JUDGMENT  BLOW CJ

22 December 2021

1. The plaintiff is a son of the defendant. He has sued his father for damages for assault and battery, alleging that he was repeatedly sexually assaulted by him over about six years, commencing when he was 10 years old. In 2016 the defendant pleaded guilty to a charge of maintaining a sexual relationship with a young person under the age of 17 years – the plaintiff – and was sent to prison. This action was commenced before he was released. The defendant engaged solicitors and defended the plaintiff's claim, initially making no admissions as to the allegations of assault and battery. In late June 2021 his solicitor ceased to act for him. Thereafter he took no part in the proceedings. He was notified when the action was listed for trial, but did not appear at the trial, which proceeded ex parte pursuant to r 570(1) of the Supreme Court Rules 2000.

2. In brief, the plaintiff's case is that the defendant unlawfully sexually assaulted him on multiple occasions during the years in question by touching his penis and testicles. He contends that there were times when the defendant caused him to obtain an erection whilst also obtaining an erection himself, times when the defendant purported to conduct medical examinations of his genital area, times when the defendant masturbated with him, times when the defendant fondled his genitals, and times when the defendant pulled down his pants. He adduced evidence that, as a result, he commenced to suffer from complex post-traumatic stress disorder and major depression, that he is likely to suffer from those conditions for the rest of his life, and that those conditions have interfered with his capacity to earn an income as a corporate lawyer. He is claiming aggravated damages in relation to both the sexual abuse and the defendant's conduct towards him, and in relation to his allegations, commencing at a time when he first confronted the defendant about his conduct in 1999.

3. The trial was a short one. I permitted the evidence-in-chief of each witness to be given wholly or partly by affidavit. The plaintiff gave oral evidence by video link. He lives in Europe. Expert evidence was also given by a psychiatrist, a director of a legal recruitment agency, and an actuary. I also received affidavit evidence from a second psychiatrist.

4. I am satisfied that the evidence of every witness was truthful and reliable. Those who gave oral evidence were all impressive.

The sexual abuse

1. The plaintiff made a police statement in 2014 in which he gave a thorough account of his recollections of the sexual abuse. At the trial, the plaintiff adopted the contents of that statement and it was tendered as an exhibit. His description of the defendant's conduct in that statement, omitting identifying details, reads as follows:

   "The abuse began when I was around 10 years old and continued until I was about 15 years old. It began when I was in grade 4 at school and continued until approximately early grade 10.

   All of the incidents occurred at our family home at ...

   Each act of sexual assault occurred with [the defendant] in private, normally in a downstairs room of our house. I do not remember which incident was the first occasion, or which time was the first. Most of the incidents occurred in a front room of our house which we called the library. He would close the door and say that he needed to 'check how I was growing'. He would remove my pants and kneel with his face before my crotch and fondle my penis and testicles for some time. I estimate that he would do this for around 10 minutes each time. I felt frozen and that I had to do what he said. I often would just stare out the window, rather than look at what he was doing. I estimate that about 15 to 20 incidents of this nature occurred over the years in the library ...

   I remember the following incident specifically, which occurred ... at age 12 or 13. I had started learning classical guitar at the end of primary school.

   My father came into the library where I was practising classical guitar and closed the door and sat listening to me. I stopped and he told me to keep playing, saying he wished he could play an instrument but he never had the opportunity to learn. He sat next to me on the ... lounge that was in that room and where I practised guitar and said how beautiful my hands were, that I had lovely long fingers. He took my hand in his and just stared at my hands. I remember this distinctly because his manner was very odd, quite different to normal. He was not normally gentle or nice, but on these occasions he was quite strange as if he were in a trance. Then he said he needed to check how I was growing and made me stand up and he took my pants down. He started fondling my genitals, turning my penis and testicles over and over from side to side in his hands, his face close up to my crotch. I remember his face because around this time I started to realise something was strange, although I still 'normalised' it and thought this must be normal.

   I remember incidents like this reoccurring regularly, every few months up until the age of 15 or 16 (early grade 10) ... It is important for me to note that unless there was some distinguishing factor about the incident (such as the beautiful hands conversation above, or the fact that the incident occurred in a different room) that the circumstances surrounding the incident, such as dates or time of day etc, are difficult to recount in detail.

   I remember my father also regularly coming into the lounge room when I was watching television and closing the door. I can safely say that this was most probably between 5pm and 7pm in the evening, as we were only allowed to watch one hour of television after school and it was normally the hour before dinner and the news, which was generally then playing during dinner. My father would close the door to the lounge room and sit for a while and then say he needed to check how I was growing. The same routine as above, he would take down my pants and fondle my penis and testicles. Again, this would have been around ... (grades 6, 7, 8, 9) when I was roughly 12 to 15. During this time he also would talk to me about masturbation and whether anything was 'coming out' yet when I masturbated.

   I remember the following incident around the age of 13 or 14 specifically (so grade 7 or 8). I was in the shower downstairs at our house. It was after dinner in the evening, we showered before we went to bed, not in the morning. I had finished showering and was drying myself when he opened the door. He said he needed to wash his hands. The toilet was opposite the bathroom but didn't have a sink. He came in and closed the door and looked at me in the mirror as he washed his hands. I became very nervous as I recognised the kind of look he was giving me, the same sort of trance look in his face as if he was overcome and couldn't stop himself.

   He said he would show me how to make my penis bigger. He said there was a way to make your penis bigger by squeezing it from the top or base of the penis and running your fingers down to the end. He demonstrated this on me and pulled my penis down with his fingers, one after the other. He then undid his own fly and took his own penis out and demonstrated. This is the only time that I remember that he had his own genitals exposed. ...

   Multiple incidents took place up until I was in grade 10, when I was 15 turning 16. I remember these incidents happening in other locations, if I was alone with my father. For example, ... once or twice in my bedroom, but I remember these less clearly if it was just the same and there wasn't anything out of the 'ordinary' that left a strong impression, ie if it was just repetitive. I also quickly learned to sleep with my door locked and that may have limited further incidents happening there. Sometimes my father would come and try to open my door once we had gone to bed and get angry that I had locked it, and bang the door in the door-jamb against its sliding lock. I would pretend to be asleep.

   My father regularly told me not to tell my mother about these incidents, because she wouldn't understand this 'men's stuff'. I remember walking once down our driveway with my father and he told me that I shouldn't talk to my mother about any of this stuff as she went to an all girl's school, didn't have brothers and wouldn't understand what men do. Sometimes he said she was a 'prude' and I shouldn't tell her, because she would get upset or wouldn't understand. I never told my mother during my adolescence as you didn't disobey my father.

   I remember the following incident specifically because it was the last. I was in the lounge room watching television and I think I was in early Grade 10, which means I was probably around 15 to 16 years ... He interrupted me watching television and said he needed to check how I was growing. I remember distinctly thinking 'I am too old for this now' and I refused to allow him to and actually said 'I am too old for this now!' I had planned to say this for sometime as an argument for why I shouldn't have to do it anymore. I was terrified to say it, I remember that clearly. It took all of my willpower to say it and I think it came out like a scream and I became very upset and left and went upstairs to my bedroom and locked the door. It never happened again and he never discussed it with me again."

2. To obtain a conviction of a charge of maintaining a sexual relationship with a young person under the age of 17 years, as that crime used to be called, it was necessary for the Crown to satisfy a jury beyond reasonable doubt that the accused had committed unlawful sexual acts in relation to the young person on at least three identifiable occasions. I expect that that is why the police statement focussed upon a small number of identifiable occasions.

3. Each time the defendant touched his son's penis and/or his testicles, he committed the torts of assault and battery. The ingredients of the tort of battery are as described by the Victorian Court of Appeal (Buchanan, Ashley and Weinberg JJA) in Carter v Walker [2010] VSCA 340, 32 VR 1, at [215]. I would summarise the points of present relevance as follows:

   ·     A battery is constituted by the defendant doing an act which causes physical contact with the plaintiff.

   ·     The act must be voluntary, that is, directed by the defendant's conscious mind.

   ·     The touching must be intentional. If it is substantially certain that the act will result in contact with the plaintiff, it must be considered intentional. (There are cases as to whether reckless acts may be regarded as intentional but they are of no present relevance.)

   ·     The act does not require that the defendant intend the plaintiff any harm, or that the plaintiff suffers any harm, but is actionable per se.

   ·     Once battery is established, immediate harm and consequential damage are compensable. The boundary of entitlement is set by the concept of "natural and probable consequence".

4. For the purposes of the law of tort, an assault is "an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect": Rixon v Star City Pty Ltd [2001] NSWCA 265, 53 NSWLR 98 at [56].

5. In his amended defence filed on 8 October 2018, the defendant pleaded consent and other defences. He admitted touching the plaintiff's genitals on four occasions, but pleaded that those acts "were done without indecent intent and were done with the Plaintiff's consent and/or in the alternative were done in the discharge of the Defendant's duty as parent of the Plaintiff, then a minor, to take care for the Plaintiff's health, wellbeing and development".

6. Since the defendant did not defend the case at trial, no evidence was presented to support those allegations. The onus was on the defendant to prove consent: Moon v Whitehead [2015] ACTCA 17, 10 ACTLR 309 at [37]. The matters pleaded are entirely inconsistent with the plaintiff's evidence as to the defendant's conduct, which I unreservedly accept. I therefore reject them. Even if the plaintiff had consented to any indecent touching, the defendant's acts amounted to crimes, contrary to provisions in the Criminal Code, and the consent of a person of the plaintiff's age could not have made the defendant's conduct lawful because of provisions in the Code, including s 127(3).

The defendant's conduct 1999-2021

1. After the sexual abuse ceased, the plaintiff did not speak to his father about it until 1999. In that year he confronted his father about it, and asked him never to contact him again. At that time the plaintiff had left Tasmania, completed university studies, and obtained employment as an articled clerk in the office of a large law firm in Melbourne. His desk was in the same room as that of his master solicitor. On a number of occasions the defendant phoned him while he was at work there, and threatened to commit suicide if he told anyone of the sexual abuse.

2. In 2001 the plaintiff wrote a letter to his parents and other family members explaining that he was struggling with his relationship with the family because his father had sexually abused him as a child. His father responded with a letter to the plaintiff and other family members on 7 October 2001. The letter was 17 pages long. It included the following:

   "I stated in my last letter to [ZAB] that I had suffered my last terrorist attack. Never did I imagine what was about to be fired at me. Just like Bin Laden the attack was enormously soul destroying, enormously distorted thinking and from a mind full of demons out to severely hurt many …

   … Let me just say, this is the most horrific, outrageous and lunatic claim that [ZAB] has raised so far. At no stage in my life have I ever had sex with a minor or sexually interfered with anyone let alone a family member. I am not a pedophile. [ZAB] this claim is either a criminal act or a defamatory act. In due course that will be determined.

   … [ZAB's] aim has been to cause as much hurt and destruction as possible to me and our family. The claims [he] made in his letter are so preposperous that we should show compassion towards him. I have offered professional help many times, all to no avail. It is distressing to observe my eldest son suffering so much dillusion and not being able to help. I do hope that [he] can rid his soul of those demons that appear to be in control of his thinking.

   …

   I don't expect [ZAB] ever to be part of my life again, that is his loss and choice. The other family members will grow stronger. I will never trust or have any respect for [him] again. I only see him as my biological son, there is no love left, the cuts are too deep, the damage is too great, I wish his name was … Smith. I will always love my other children … with all my heart."

3. It appeared to the plaintiff that the rest of the family accepted what his father said, and not anything that he had said. His father continued to phone him and to write letters to him. He asked his father on a number of occasions not to contact him any more, but without success.

4. As part of his evidence-in-chief, I received a victim impact statement submitted by the plaintiff to the Parole Board. It included the following in relation to the conduct of his father:

   "He told family and friends that I was mentally ill. This was a lie.

   He told family and friends that we had had a falling out over money. This was a lie.

   He told family and friends that he was conducting medical examinations. This was a lie.

   He told family and friends that I just wanted to hurt him and the family. This was a lie."

5. That evidence was hearsay. It was not objected to since the action was not defended. Section 59(1) of the Evidence Act 2001 provides that hearsay evidence is "not admissible" to prove the truth of the facts asserted. However there is a substantial body of authority establishing that "not admissible" means "not admissible over objection", with the result that hearsay evidence is not excluded when there has been no objection: R v Reid [1999] NSWCCA 258 at [5]; R v Spathis [2001] NSWCCA 476 at [416]; R v Lyberopoulos [2002] NSWCCA 280 at [41]; R v Kaddour [2005] NSWCCA 303, 156 A Crim R 11 at [62]; Gonzales v The Queen [2007] NSWCCA 321, 178 A Crim R 232 at [25]-[26]; WC v The Queen [2015] NSWCCA 52 at 20; Perish v The Queen [2016] NSWCCA 89 at [261]-[269]; Selstam v McGuinness [2000] NSWCA 29, 49 NSWLR 262 at [149]; Gray v Ware Building Pty Ltd [2013] NSWCA 271 at [94]; Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74 at [25]-[26]. The correctness of that line of authority was queried, but not ruled upon, by the Victorian Court of Appeal in Velkoski v The Queen [2014] VSCA 141, 45 VR 680. The authorities that I have listed are not plainly wrong, and I am therefore bound by them. I am conscious that various pieces of hearsay evidence were presented in this case. I have taken the hearsay nature of each piece of evidence into account in deciding how much weight to give to that evidence.

6. The defendant's contact with the plaintiff escalated between 1999 and 2003. Sometimes the plaintiff came out of his office and found the defendant standing on the street. The defendant sometimes telephoned him. At least once the plaintiff changed his telephone number, but the defendant found out his new number and rang him on it. The plaintiff made two documentaries at about this time. The defendant made a number of unpleasant comments about him in the comments sections of online newspapers, and in social media, suggesting that he was delusional and mentally ill.

7. In 2003 the plaintiff applied to the Magistrates' Court of Victoria for an apprehended violence order against the defendant. The defendant gave an undertaking to that court. The undertaking remained in force for two years. The defendant complied with that undertaking, but it expired in 2005. By then the plaintiff was living in Germany.

8. In 2014 the plaintiff reported the sexual abuse to Victoria Police, and made the statement that I have quoted from. The complaint was referred to the Tasmanian authorities and the defendant was charged with maintaining a sexual relationship with a young person under the age of 17 years. At that stage the plaintiff was working for a large Australian corporation as an in-house lawyer. He was working with the company secretary and the group general counsel. Those people knew nothing about the sexual abuse until a letter arrived from the defendant's solicitor.

9. On 7 December 2014, after the defendant had been arrested and charged, the plaintiff sent an email to the defendant's employers telling them of the prosecution and asking them to take precautions in relation to various things including his father's access to children. He sent the email from his business email address.

10. On 12 December 2014 the defendant's solicitor wrote to the company secretary of the plaintiff's employer, threatening to sue the company for defamation. The letter included the following:

    "I advise that I act for a [ZWM] who proposes to make a formal complaint of criminal defamation against one of your Legal Team, one [ZAB] and further, proposes to institute proceedings against [the employer] for defamation.

    The genesis of the matter is that Mr [ZAB], (the son of [ZWM]) published an email to my client's employer to all, or most of the ..., that my client works with. I enclose a copy of that email. The subject is marked as 'confidential' but you will see that it is to the ... website email account and has gone to a number of persons.

    Putting aside the serious allegations of a sexual nature which is the subject of a prosecution which is defended, Point 3 of the email is, upon my instructions, entirely defamatory and without any basis of truth. Similarly with Point 4.

    I am instructed that ... have investigated the complaint and have found there is no substance. My instructions are therefore to refer this matter to you and demand an unequivocal apology. Insofar as [ZAB] is a Legal Counsel employed with ..., that ... take all such steps that they reasonably can to prevent [ZAB] from using ... facilities to continue to publish defamatory material and/or to ensure that no such material is disseminated under the guise of the ... Legal Services.

    In the event that is [sic] no apology then proceedings will be issued against ... without further notice. In the event that you have a Legal Team which is independent of [ZAB] who have instructions to accept service of such proceedings, would you please provide me with the names, addresses and details where I can provide them with the Writ."

    That letter caused the plaintiff great embarrassment and distress, but the threatened proceedings were not instituted and he kept his job.

1. In the criminal proceedings, the defendant pleaded not guilty and was committed for trial.  His trial was listed for a date in October 2016. In the weeks approaching the trial date, the plaintiff noticed that he was being kept under surveillance from time to time. On one occasion he saw somebody going through his garbage. The only rational explanation is that the defendant must have made arrangements for him to be kept under surveillance for reasons connected with his defence.  I have no reason to doubt the reliability of the plaintiff's observations. The two psychiatrists who gave evidence both said that the plaintiff was not delusional.

2. The plaintiff suffered from nightmares and other symptoms for about two years before the resolution of the criminal proceedings. He saw a psychologist weekly or fortnightly from some time in 2015.

3. At some stage while the criminal proceedings were pending, a second complainant came forward. He was the son of family friends, and had treated the defendant as an uncle. The defendant was indicted on charges relating to both the plaintiff and the new complainant. There was an application for severance of the indictment. The plaintiff was required to give evidence on the voir dire. The possibility of concoction became an issue. The plaintiff gave evidence, and was cross-examined by defence counsel for three or four hours in October 2016.

4. The next evening the Director of Public Prosecutions phoned the plaintiff and told him that the defendant would be changing his plea to guilty. The charge relating to the other complainant was abandoned. The plaintiff was spared the ordeal of giving evidence before a jury. The defendant pleaded guilty, was sentenced, and went to prison.

5. Two days before the sentencing, the plaintiff attended the emergency department of a hospital, complaining of severe heart palpitations.  Investigations revealed no major medical cause. A doctor considered that the plaintiff may have been suffering from panic symptoms.

6. The defendant's conduct at and after the sentencing hearing was summarised by the plaintiff in a statement written by him which was verified by affidavit and relied upon as part of his evidence-in-chief. That statement includes the following:

   "1.7     ... at sentencing the defendant attempted to present evidence of his remorse in his plea of mitigation – albeit this was not accepted by the Court. But in private he was already promulgating further propaganda about me to family and friends – that his plea of guilty was not actually an acknowledgment of guilt, but a 'strategy'. He let it be known he had expected to be handed a suspended sentence. A party of celebration was planned at his home in Launceston for the evening of sentencing. The catering was booked, family and friends were invited.

   1.8      This conduct was not dampened by his prison sentence. He doubled-down.

   1.9      From prison the defendant wrote letters to family, friends and public institutions, such as the … City Council, claiming he was the victim of a 'set-up' and a conspiracy. As a result I was the subject of the most malevolent gossip.

   1.10     These lies became so deeply entrenched, that warped versions of them began appearing in social media from people who do not even know me, such as this one on Facebook:

   'What makes me sick is the conviction of a family friend ... who has been falsely convicted. His son, as said victim, works high up in the Hobart Magistrates Court, ... the Tasmanian justice system has yet again failed in peoples' [sic] eyes.' [The defendant has never worked in the Tasmanian justice system.]

   1.11     People falsely claimed I worked with Tasmanian courts and had conspired to have the defendant convicted. I was identified in social media as the victim of abuse, and people discussed my genitals and intimate details of the abuse in public Facebook chat groups, repeating distorted versions of the defendant's lies."

7. At the time of sentencing, an application for compensation was made pursuant to s 68 of the Sentencing Act 1997. The application was adjourned sine die. No other procedure was available for the claiming of compensation or damages by the plaintiff until the Limitation Act 1974 was amended, with effect from 1 July 2018, by the insertion of s 5B. Since then, by virtue of s 5B, there has been no limitation period for an action for damages for personal injury arising from sexual abuse of a minor.

8. The plaintiff commenced this action on 6 July 2018.  By a defence dated 24 July 2018 the defendant's solicitor disputed all the plaintiff's allegations as to assault, battery, personal injury, damage, loss and expense. In October 2018, as I have said, the defendant's solicitor filed an amended defence, admitting that he touched the plaintiff's genitals on four occasions, but pleading that the touching was lawful because of a lack of indecent intent, consent, and parental duties.

9. For some time the defendant sought to defend this action on the basis that the plaintiff's allegations were delusional, and that his delusions were somehow related to sexual activities on his part as an adult.  Prior to the trial of this action, the defendant's solicitor made a series of appointments for the plaintiff to see Hobart psychiatrists, but all of the appointments were cancelled. In 2019 the plaintiff flew from Europe to keep an appointment in Hobart with one of those psychiatrists, Dr Lovell, but the appointment was cancelled at the last moment. In his statement, the plaintiff said:

   "Dr Lovell disclosed in correspondence with my solicitors that he cancelled the appointment because of the highly sexualised nature of the line of questions that the defendant had asked to pursue, which was liable ... to retraumatize me, and the defendant's insistence that I not be accompanied by a support person. The risk, he concluded, to my mental health was not acceptable."

   I infer that the appointments with the other Hobart psychiatrists were all cancelled by them for the same reason.

10. In 2020 an arrangement was made for the plaintiff to be examined by a Sydney psychiatrist, Dr Apler. The plaintiff participated in an interview from Europe using some sort of audio-visual link. The assessment took four hours, from 1am to 5am where the plaintiff was. The plaintiff's statement includes the following in relation to that interview:

    "He objected to me taking toilet breaks during the four-hour ordeal, or as it became clear that I was becoming distressed by his line of questioning. I informed he [sic] that I was becoming disassociated by what felt like an interrogation. He asked me questions like 'Have you worked as a prostitute?' (I have not), 'Do you prefer sex with men or women?', and a range of questions irrelevant to my injuries or experience of child abuse. The nature of the questions gave me the impression that he must have had direct contact and discussion with my father, as so much of the language used echoed his lies and victim-blaming."

11. A draft report of Dr Apler was provided by the defendant's solicitor to the plaintiff's solicitors, but a final report was never provided.

12. Last year, during the discovery process, the defendant's solicitor wrote several letters to the plaintiff's solicitors pressing for him to reveal his HIV status and to provide test results for sexually transmitted infections. He suggested that the plaintiff had "suspected HIV" and a "possible delusional disorder" caused by sexually transmitted infections. Initially the plaintiff was unwilling to provide such personal medical information but, after some months, and against the advice of his counsel, he provided pathology results revealing that he was HIV negative and was not suffering from any sexually transmitted infections.

13. As I have said, the defendant's solicitor ceased to act for the defendant in late June 2021. He filed and served a notice of ceasing to act about a month before the trial. Until the first day of the trial it was not known whether the defendant would attend court, represent himself, and seek to cross-examine the plaintiff.

The plaintiff's work history

1. The plaintiff completed his secondary education and started going to university in Tasmania. He was strongly motivated to get good academic results, with a view to transferring to a mainland university and getting away from his father. He had excellent university results and looked forward to an independent career. He completed his university studies on the mainland and, as I have said, obtained articles with a large law firm in Melbourne.

2. He was an articled clerk when he confronted his father about the sexual abuse in 1999. He did not expect his father to respond with hostility, or to be ostracised by his family. He became depressed as a result of those things happening. His depression was aggravated by his father phoning him at work and threatening suicide.

3. At the end of his period of articles he felt that he could not continue working with the law firm because his mental health was bad and he felt that he could not cope. An arrangement was made for him to work part-time, working three days per week in the office of the major corporation that I have mentioned. He wanted to pursue a career as a corporate lawyer. He very much enjoyed the work that he did for the company. He saw himself as being suited to working as in-house legal counsel, and hoped to reach general counsel status at some point. Many of his peer group have progressed through to that level.

4. He worked for three days per week for the company until 2002. There was some flexibility, but on average he worked three days per week.

5. In 2005, towards the end of the period when the defendant was bound by his undertaking to the Magistrates' Court, the plaintiff became very apprehensive about the possibility of his father starting to harass him again. He therefore moved to Germany. His legal qualifications were not recognised there. He did some film-making work. He made a documentary and did some writing. His income was very low.

6. In 2011 he returned to Australia, and resumed working for the same employer, three days per week. He considered that that was the best way to manage his depression. In 2016 his employer offered him a new full-time position in a different role. His father's criminal trial was due to start about a month later. He said that he could not take on the proposed full-time role. As a result, the employer terminated his employment, giving him three months' notice.

7. After the defendant had been convicted and sentenced, the plaintiff applied for a range of jobs in Australia and in Europe. He was only offered one position, which he accepted. It was a position in Germany as an in-house lawyer with a music streaming company. He worked there for two months. He did not cope. He disagreed with the management about certain matters. His health deteriorated, and his employment was terminated.

8. After that he found employment with a Scandinavian company as its chief privacy officer and head of its global privacy legal team. He worked for that company for three months. However his mental health deteriorated rapidly. He was so depressed that he could not get out of bed to go to work. He suffered nightmares and insomnia. He resigned because he felt that he was not well enough to do the job.

9. That company gave him three months' leave on full pay. He tried to address his health issues. He did not work from January 2018 until September 2018.

10. At that time he accepted a position with a German company as its EU regional manager for international relations. However his mental health deteriorated to the point where he was hospitalised before taking up the position. He worked in that position for about 10 or 11 months. It was during that time that the defendant's solicitor was trying to get him to come to Hobart for psychiatric assessments. He was receiving treatment for his depression and taking medication. The medication led to nausea and stomach ulcers. He resigned with effect from about 30 June 2019 because he did not consider himself well enough to pursue both his employment and his action for damages. He has been unemployed ever since.

11. He did not seek employment in the second half of 2019. He had medical advice that he was not well enough. Then in 2020 he began applying for positions. He made about 150 applications and had about 10 interviews, but was not offered any of the positions.

The plaintiff's mental health

1. The plaintiff has been diagnosed as suffering from both a persistent depressive disorder and a complex post-traumatic stress disorder. He commenced seeing a Melbourne psychiatrist, Dr Geoff Thompson, in 1999 after confronting his father about the sexual abuse and being ostracised by his family. At that time he began experiencing symptoms of anxiety and depression. He has been seeing Dr Thompson ever since. When living in Europe he has seen him on trips to Australia.  He was examined by a second psychiatrist, Dr Gregory White, in December 2016 and May 2020 for the purposes of his claim for damages.

2. In Dr Thompson's opinion, there were a number of important factors that greatly increased the impact of the defendant's sexual abuse of his son. I would summarise those factors as follows:

   ·     The abuser was the plaintiff's father, a person "for whom a child has unconditional acceptance and an assumed unconditional trust".

   ·     The defendant had made himself a respected and powerful authority figure in the community. That greatly amplified confusion on the part of the plaintiff when he tried to understand what was happening to him at the hands of his father.

   ·     The abuse occurred repeatedly over six years, during a period critical in the development of identity and a sense of self.

   ·     The impact of the abuse was exacerbated when reports of the abuse were not believed by members of the plaintiff's family.

   ·     The defendant, a powerful authority figure, used threats and intimidation in an attempt to silence the plaintiff by disrupting his relationships with people he was working with, or collaborating with in his creative pursuits.

3. In a report dated 19 February 2017, Dr Thompson explained the basis of his diagnosis of post-traumatic stress disorder by reference to the criteria for that condition according to DSM-5 – The Diagnostic and Statistical Manual of Mental Disorders, 5^th ed, published by the American Psychiatric Association. He said this:

   "The stressor (criteria A) was the repeated sexual abuse by his father over a period of six years in his adolescence. He has the intrusive symptoms (criteria B) of intrusive thoughts and memories, nightmares, periods of dissociation and intense anxiety and fear in response to triggers. He actively tries to avoid thoughts of his abuse (criteria C). He has suffered a number of 'negative alterations in cognitions and mood' (criteria D) manifesting in negative beliefs and perceptions about himself, fear, shame and alienation and detachment from people in his life. The final criteria E arousal symptoms have manifest [sic] in chronic sleep disturbance and, prior to and during the early years of his psychotherapy, engagement in a variety of reckless behaviours including repeatedly putting himself in highly vulnerable sexual situations. These reckless and self-destructive behaviours continued over many years."

4. Dr Thompson went on to comment about other symptoms, saying this:

   "It is important to remember that the trauma occurred at a critical point in his developing sense of self and before the formation of identity or a consolidated personality. This is critical in the way the trauma invades the fundamental components of the evolving 'self'. These include but are not restricted to the periods of substance abuse, depression, anxiety and suicidal ideation. He suffered chronic feelings of helplessness, negative perceptions of self, chronic feelings of shame, inability to trust people and long term and persisting stress sensitisation. This sensitisation means any emotional stresses exacerbate persisting symptoms from his abuse in childhood. Mr ... also has carried forward into his adult life feelings of vulnerability as if he is just as vulnerable to being abused by powerful figures as he was at a much more immature age.

   The culmination of these deep-seated effects on his sense of self and a sensitivity to the physical triggers originating from his abuse in childhood has had a debilitating effect on his ability to have relationships. The fear of trust and negative perceptions of self make both emotional and physical intimacy impossible for [the plaintiff].

   It is important to note that while I have not diagnosed [the plaintiff] with co-morbid major depression, he has suffered significant depressive symptoms. These affective symptoms are an integral part of a trauma syndrome and while we elected to treat them with psychotherapy and not antidepressant medication, this should not in anyway be taken to minimise the morbidity associated with his depressive symptoms. The sadness, the negative cognitions in relation of self, the feelings of helplessness and powerlessness and periods of suicidal ideation have been a source of much emotional pain."

5. In a report dated 17 February 2021, Dr Thompson said the following as to developments over the four years since his previous report:

   "I have only had a small number of sessions with [the plaintiff] since the 2017 report because he has spent most of this time living in Europe. I saw him on two occasions in March 2017 at which time he reported that he was 'not doing so well'. He said that the trial had been a huge drain on him and he was now anxious with associated ruminations, irritable resulting in clashes with people and being easily triggered. He was managing to find ways to reinforce the negative self-evaluations such as agreeing to conditions around the sale of his house that disadvantaged him. He was also increasingly aware that the quality of the friendships with his European friends was that they were not solid people and mostly 'fair-weather friends'. This was recognition of his social and interpersonal isolation and withdrawal from meaningful connections.

   I next reviewed [him] on December 11, 2017 at which time he was reporting more depressive, anxiety and trauma related symptoms through the later part of 2017. He had found himself in a workplace with a bullying culture that impacted upon him. He felt less resilient, described himself as very triggered and revealed more prominent re-experiencing symptoms including regular nightmares about his father's abuse. At the time of review he was reporting a slight improvement in his depressive symptoms and was leaving soon after to return to Europe. The possibility of a depressive illness existed at that time and I encouraged him to seek assessment and treatment when back in Europe.

   In September 2017 [he] had and [sic] deterioration in his mental state with an acute Major Depressive Episode and suicidality leading him to present to a local Emergency Department. He was admitted to a locked ward in an acute psychiatric unit to ensure his safety and was commenced on Sertraline (antidepressant) and Quetiapine (antipsychotic/mood stabilized/anxiolytic). [He] reported that the episode have [sic] been precipitated by the ongoing legal processes repeatedly exposing him to documents and triggers reminding him of his abuse, the suicide death of his cousin and an awareness that his father was soon eligible to apply for parole and feared he would be released.

   I reviewed [him] on two occasions in February 2019 at which time he presented as still significantly depressed, anxious and with persisting trauma related symptoms. In spite of his ongoing symptoms he was still on a low dose of his sertraline and was compromised by the sedating effects of the Quetiapine but that was still necessary for his anxiety symptoms. I increased his antidepressant dose and he returned to Europe again. When I reviewed him in August 2019 his antidepressant dose had been increased but he still had ongoing features of Major Depression. There were ongoing stresses with being referred to yet another psychiatrist by the defense team, however, this psychiatrist refused to do the assessment because the nature of the questions proposed by the defense team were likely to be re-traumatising. [He] stopped work in June 2019.

   [He] continued to be depressed through 2019 and the first half of 2020 in spite of increasing doses of sertraline. In July 2020 he was changed to Venlafaxine and the doses slowly increased over subsequent months. On my latest review on January 19, 2021 I am pleased to report [his] depression is resolving. He reports improved sleep, mood, energy and cognitive performance. There has been a reduction in his trauma symptoms also with no flashbacks currently but ongoing nightmares but they are less intense. He cannot avoid thinking about the upcoming trial and still experiences other intrusive thoughts.

   My opinion is that [he] has endured a Major Depressive episode that lasted from September 2018 until January 2021. The antidepressant medication has also reduced the anxiety and re-experiencing symptoms of his c-PTSD but the sense of self and identity symptoms of this condition are not responsive to psychotropic medications and thus they are ongoing. The remission of his depression is so recent, after such a prolonged episode, together with the significant ongoing stressors, means it is too early to know how robust and enduring this remission will be."

1. Dr Thompson went on to describe the impact of the plaintiff's psychiatric conditions on his personal, interpersonal, social, vocational and physical functioning, as follows:

   "Personal

   [The plaintiff] has a persisting negative sense of himself, his worth, he always feels unsafe and vulnerable. When depressed he has struggled with basic self care, getting out of bed and attending to nutrition and exercise. His sense of vulnerability and fear of intrusions into his life and surveillance and threat from his father has caused him to seek refuge living outside of Australia. He has moved frequently and reports living in 15 different locations over the last three years. Thus it impacts on how he experiences himself and how he engages with the world around him. When preparing impact statements for the courts he said it made his life feel like a 'train-wreck'.

   Interpersonal

   [He] has difficulty with interpersonal trust and emotional and sexual intimacy. He has not dated anyone for several years. The people he has mixed with during his time in Europe are superficial connections. I believe them to be self interested and therefore do not require a level of intimacy that [he] would find difficult. It is also important to note that [he] has lost his family because of the impact the legal process has had on the family relationships.

   Social

   [He] has a law degree and a superior intellect, but his vocational history is well below his innate capacity. He has not worked since August 2019 and prior to that had a number of brief periods of work in different jobs. His mental state at times means he is late to work or struggles to perform his role and has resulted in him losing jobs. His history of abuse also makes him sensitive to people in positions of power and authority as everyone inevitably encounters in their vocational life because of the necessary hierarchical corporate structures. In addition high levels of arousal, anxiety and lowered mood all impact on his cognitive and higher brain functions that are required, given the nature of his qualifications and the vocational roles he has been employed in. His abuse has had a major impact on his vocational functioning and given his age and the duration of his struggles, he will never achieve his full potential.

   Physical

   It is well recognised that chronic stress and other mental health conditions effect our physical health. This can be through effects on our immune systems and increased risk for general health conditions. For [the plaintiff] his mental health has impacted on his ability to exercise regularly and at times his nutrition. The treatments for his mental health conditions also have metabolic side effects and he has gained 15 kg since starting antidepressant medication and has reported to me that he has hypercholesterolemia and in my opinion his medication is likely to be a contributor."

2. Dr White's reports contain similar information as to the plaintiff's history, symptoms and diagnosis. The evidence before me also contains a report by three German doctors concerning treatment received by the plaintiff as an inpatient at a clinic over five days in September 2018. The history, observations and opinions set out in that report are all consistent with the contents of the reports of Dr Thompson and Dr White.

3. I am satisfied that the plaintiff is suffering from complex post-traumatic stress disorder and a major depressive disorder as a result of the sexual abuse by his father as described by him. His symptoms have been exacerbated from time to time as the result of the conduct of his father and other stressors, including the suicide of a cousin. However I am satisfied that the defendant's sexual abuse of the plaintiff was the major cause of all his psychiatric and psychological symptoms. I am satisfied that, as a result, the plaintiff's earning capacity has been impaired since about the end of 1999, and that it is likely to remain impaired for the rest of his working life. Generally speaking, I am satisfied that he has taken reasonable steps to fully exploit his residual earning capacity. I am also satisfied that the treatment he has obtained from doctors and psychologists, and the medication that he has been prescribed, have all been necessitated by that sexual abuse.

4. Dr Thompson's opinions as to the plaintiff's prognosis, future treatment, and future capacity for work, as set out in his report of 17 February 2021, are as follows:

   "Complex PTSD is a lifelong condition, which he will have to manage for the rest of his life. It will have a fluctuating course with triggers and other life stresses causing periods of exacerbation of symptoms and associated impaired functioning.

   Major Depressive Disorder is a relapsing and remitting condition. Emerging so recently from a prolonged depressive episode means that we must be guarded at this stage especially in light of ongoing significant stress from the current legal proceedings.

   We do not know at this time if he will suffer recurrent bouts of depression but the risk is increased by the comorbid PTSD diagnosis and the duration of this depressive episode.

   Mr ... has two serious mental health conditions, both of which are enduring conditions that will impact his health and wellbeing into the future.

   ...

   Mr ... will require long term treatment for many years to come. This will be both a combination of psychotherapeutic treatments and pharmacological treatments. In my opinion his decision to live overseas has negatively impacted on his ability to source and engage in psychological treatments and should he continue to live there this may be an ongoing issue.

   He may see a reduction in the intensity of his symptoms and impairments once all legal matters are closed, however, in my years of experience in treating trauma I have not seen it provide resolution and does not always improve the clinical picture.

   ...

   I have made reference to the factors affecting his ability to work in the body of this report. While his depressive illness is going into remission at this time, his ongoing c-PTSD will continue to impact his work capacity as will the stress of the current legal proceedings. The challenges of sense of self, interpersonal functioning, impaired cognitive and higher brain functioning, trust, power dynamics are likely to be ongoing but it is difficult to predict to what degree his vocational capacity will be affected.

   ...

   I am hopeful that Mr ... will be able to achieve a working capacity in the future but it is impossible to quantify ... work capacity is not only employability and hours of work but the level or role that at which he is employed. As I have said above I do not think he will ever achieve the level of vocational success his innate capacity suggests he would have been capable of. His age, missed opportunities and having two chronic mental health conditions means achieving 100% of his true working potential is not going to occur.

   The factors likely to influence his future vocational success include resolution of the ongoing stress of this civil action to alleviate chronic stress and triggering of his trauma, control of his depressive and trauma related symptoms, and improved personal, interpersonal and social function. As some of the functional impairment relates directly to the core disturbances of self, which in themselves can be difficult to change and if they do heal, the time frame is measured in years. I think it reasonable to determine that 100% recovery is not likely to be achieved. Any vocational recovery that does happen, will do so over one to many years and the percentage of recovery is unknown."

5. Dr White's opinions as to the plaintiff's prognosis and treatment, as expressed in a report dated 30 May 2020, were as follows:

   "This examiner, in the original report dated 15 December 2016, stated that Mr ... was 'likely to suffer from ongoing symptomatology, despite his strengths, stoicism and supportive social network'.

   This examiner opined that 'with ongoing robust psychiatric and psychological treatments, it would be hoped that there would be an increased stability, reduction in flow in acute psychiatric symptomatology, and an assimilation of his previous experiences into a narrative which allowed him some further degree of acceptance and reduction in anger and self-blame'.

   However, this examiner stated that it was likely that he would experience ongoing difficulties in interpersonal relationships, a tendency to depressive symptoms and recurring involuntary and distressing memories of the sexual abuse and its consequences, as well as a degree of incapacity for full-time employment as a lawyer.

   This examiner is of the opinion that there is now a likelihood of even more devastating chronic difficulties resulting from brain neuroplasticity, causing treatment-resistance within a setting of poor prognostic factors, including:

   ·     the nature, severity and duration of the trauma

   ·     the severity and duration of the symptoms

   ·     incomplete recovery after so many years

   ·     comorbid psychiatric disorders

   ·     a reduced network of family and friends

   ·     a restriction of activities of daily living

   ·     post-traumatic embitterment and marked demoralisation

   ·     limited ability to engage in sustained treatment

   ·     further traumatising experiences

   This examiner does not consider that there is any treatment which will likely decrease the underlying permanent impairment in the foreseeable future. However, there is a need for ongoing treatment to try to attempt to minimise the symptoms and reduce the risk of further exacerbation and premature mortality from poor self-care and an increased risk of suicide, particularly if exposed to any significant additional stressors.

   ...

   Further to this examiner's description of future treatment needs in the original report dated 15 December 2016, and given the context, severity, complexity and duration of the psychiatric symptoms, optimal treatment should involve a combination of psychiatric and psychological treatments, with close liaison between the various treating agencies.

   Mr ... requires indefinite treatment with a psychiatrist for ongoing evaluation and treatment planning. Given the presence of significant ongoing depression, further psychiatric medications will likely be required. Further sequenced trials of different types of psychiatric medications will likely be indicated, in order to find the optimal combination and dosing of antidepressant, mood-stabilising, anti-anxiety and sleep-assisting medications.

   Given the severity of the symptoms and the compounding grief, therapy with a psychologist over a prolonged period will most likely be required. A robust combination of supportive-expressive counselling and cognitive behaviour therapy is a standard approach to treating a significant psychiatric illness.

   There is a significant likelihood that treatment, maintenance consultations and medications will be required for the foreseeable future.

   Individuals such as Mr ... may at times require changes to the frequency of treatments with the psychiatrist and psychologist. They tend to remain susceptible to stressful events, and at various times may require a change of medication and an increase in frequency of consultations, depending on external factors and particular needs during life events."

Impairment of earning capacity – Past

1. There is no suggestion that the plaintiff's mental health problems interfered with his earning capacity until he completed his articles of clerkship at about the end of 1999. Since then his mental health problems have had a substantial impact on his earing capacity, more so at some times than at others.

2. For the purpose of the quantification of the plaintiff's claims relating to the impairment of his earning capacity, his counsel called two expert witnesses. The first, Paul Burgess, is a director of a Melbourne-based legal recruitment company. He gave evidence as to the career paths that the plaintiff would have been likely to follow if his earning capacity had not been impaired, and of the remuneration that he would be likely to have received. He is well qualified to give expert evidence as to those subjects. He completed a law degree in Adelaide in 1993 and obtained a graduate diploma of legal practice in 1994, practised in an Adelaide law firm initially, and then worked in management positions with two large corporations. He led a team of about 90 employees at Mayne Nickless. In 2001 he became a legal recruiter. He has worked in that role for the last 20 years, recruiting for private law firms, government agencies, and corporations. His company recruits in most Australian States and some overseas centres.

3. The second of those two expert witnesses was a consulting actuary named Corey Plover. Two reports prepared by him were tendered as exhibits. He is a director of an actuarial company named Cumpston Sarjeant Pty Ltd which specialises, amongst other things, in economic loss assessments.

4. Mr Burgess has not met the plaintiff, but has been provided with a great deal of information as to his academic results, his articles, and his subsequent employment, all of which is consistent with the evidence that is before me.

5. He opined that the plaintiff "was extremely well placed to achieve a highly successful corporate legal career in Melbourne within the IT or telecommunications sectors or other industries", and that he "could not have been much better placed to achieve a highly successful career in 1999 that he was". He opined as to the type of career path that the plaintiff could reasonably have expected to follow if he had gone to the company that employed him on completion of his articles, and worked there full-time. He also opined as to the likely career path if the plaintiff had instead gone to work for another corporation. He summarised the two likely career paths as follows:

   "a  Had he remained at [the original company]

   1999-2003       Continuation of his role as a Legal Counsel in Wholesale or another division or subsidiary.

   2004-2007      Promotion to Group Counsel/Senior Counsel of a division.

   2008-2012      Probable to possible promotion to General Counsel of a division. (A senior role leading a team of lawyers.)

   2013-present    Probable to possible promotion to General Counsel of a large division, and possible promotion to be General Counsel of a subsidiary or slightly possible promotion to be Deputy General Counsel of the business

   b  Had he moved to another business

   1999-2003       A role as an in-house lawyer in a quality corporate business

   2004-2007       Promotion to a role as a senior lawyer in a quality corporate business

   2008-2012       Promotion to a leadership role in a medium sized legal team, possible to probable promotion to a general counsel of a start-up or small team, promotion to a deputy general counsel in a medium sized team.

   2013-present    Possible promotion to General Counsel of a large business, including local and global companies or probable promotion to a Deputy General Counsel of a very large business, or equivalent leader of a large legal division in such a team. Probable promotion to a General Counsel of a small business, private company or start up."

6. Mr Burgess gave detailed reasons for his opinions as to likely career paths, which I will attempt to summarise. He considered that the plaintiff would have been very well positioned to advance his career, gain quality experience and training, and gain access to well regarded, complex and involved legal work, and thereby develop into a first rate corporate lawyer. He considered in 1999 and the following few years the plaintiff would have been a lawyer and potential candidate of rare quality in the local market, especially since he started his in-house career earlier than other lawyers do. In the years 2001-2003 Mr Burgess was briefed to recruit lawyers by solicitors who had worked in the same firm as the plaintiff and by the company that employed him. He was familiar with the career paths of lawyers only three to five years ahead of the plaintiff. The company in question was experiencing significant growth within its legal team during those years. He considered the plaintiff would have been well placed to take on a more senior role in the company, and that he would have been highly attractive to in-house legal teams in Melbourne in the IT and telco sectors, as well as significant businesses in other industries. He said that from 2003 onwards there was a sustained period of very strong demand, until the Global Financial Crisis of 2007-2008. He said that period was a time not seen in legal recruitment since, and that the plaintiff was very well placed to benefit from that. He said that in his experience there remains an ongoing demand for in-house lawyers with strong experience, and that areas such as telco and IT remain in demand. He said that during periods where there is less demand, the lawyers with the highest pedigrees are ordinarily less affected than others.

7. The opinions expressed by Mr Burgess are not all based on best-case scenarios. He noted that for a corporate lawyer to gain promotion to a senior leadership role there was a need for not only legal pedigree and intelligence, but also strong performance, personality, commerciality and interpersonal skills. He said that he was not in a position to comment as to whether the plaintiff possessed all of those qualities, and therefore based his assessment upon "what is reasonable to be expected if he was taken to have had average levels of those other performance traits based upon what is known from the information provided". He also took into account the fact that, timing, networks and politics can have an effect in determining how a lawyer advances, particularly whether the lawyer advances to the highest levels in a business.

8. He provided estimates of the plaintiff's weekly gross earnings, inclusive of statutory superannuation contributions, based on three alternative assumptions:

   ·     If he had remained with the original employer, worked full-time, and progressed to be general counsel of a large division of the company, earning $320,000 in the year 2020-21.

   ·     If he had remained with the original employer but progressed to a higher level from 2013, earning $400,000 gross in the year 2020-21.

   ·     If he had moved to another business, advancing to earn approximately $370,000 to $490,000 gross in 2020-21.

9. In assessing the plaintiff's damages for the past impairment of his earning capacity, I will use the least optimistic set of figures provided by Mr Burgess as s starting point. As I have said, he provided figures for the plaintiff's annual remuneration before tax and inclusive of statutory superannuation contributions. For the purpose of assessing damages, I have calculated and excluded the superannuation component for each year, and calculated the plaintiff's hypothetical after tax income. I have deducted the amounts he would have been required to pay in respect of the Medicare levy, the flood levy that was payable in the 2011/12 year, and the Temporary Budget Repair Levy that was payable in the 2014/15, 2015/16 and 2016/17 years. My calculations are set out in Appendix A to these reasons.

10. Mr Burgess did not provide an estimate of the income that the plaintiff might have earned in the current financial year (2021-22). For the purpose of my calculations, I will assume that he would have earned $300,000 per annum before tax, excluding employer superannuation contributions. I calculate that his net annual income would have been as follows:

    Gross income  $300,000

    Income tax  ($96,007)

    Medicare levy  ($6,000)

    Net annual income            $197,933

    This equates to $3,806.40 per week after tax.

11. Based on those figures, I calculate that the plaintiff's after tax income for the period from 1 July 1999 to 22 December 2021 would have been $2,699,027 if he had worked full-time without interruption and earned the annual incomes estimated by Mr Burgess in accordance with his least optimistic scenario.

The plaintiff's actual earnings since 1 July 1999

1. My calculations as to the plaintiff's actual past earnings are set out in Appendix B to these reasons. In respect of some years, I do not have any detailed figures, and have had to make estimates as best I can. For other years, there is evidence as to what the plaintiff earned, but that varies in detail.

2. There is no suggestion that the state of the plaintiff's mental health had any impact on his earning capacity before the 1999-2000 financial year.  The evidence suggests that he completed his articles of clerkship at or about the end of 1999. His income tax return for that financial year shows that he earned $16,471 before tax from the firm to which he was articled, and a further $14,000 before tax from a company named after him. His return also shows that he carried on a business engaging in motion picture film production, and that that business operated at a substantial loss. As a result his taxable income was $9,995, and the tax paid by him amounted to only $769.

3. My task is to assess the plaintiff's residual earning capacity: Medlin v State Government Insurance Commission (1995) 182 CLR 1; Husher v Husher [1999] HCA 47, 197 CLR 138 at [7]-[8]. The evidence establishes that the plaintiff worked for three days per week after completing his articles. I am satisfied that he was not reasonably able to work more than three days per week as a result of the conduct of the defendant. The gross income of $14,000 for about six months working part-time is consistent with Mr Burgess' estimate that he could have earned an income at the rate of $51,000 per annum gross, inclusive of superannuation contributions, if he had worked full-time as in-house legal counsel during that financial year. If the plaintiff had not lost money by going into the film business, his net income that year would have been $23,632, calculated as follows:

   Taxable income                 $30,471

   Income tax thereon            ($6,382)

   Medicare levy  ($457)

   Net income  $23,632

   That net figure represents the value of the plaintiff's residual earning capacity for that financial year.

4. The plaintiff's tax returns and the report of Mr Plover establish that he continued to work three days per week as a lawyer, and to lose money from a film business, until a date early in the 2002-03 financial year. His tax returns show that his gross income as a lawyer was $39,000 in 2000-01, $38,000 in 2001-02, and $5,000 in 2002-03. I am satisfied that those figures represent his residual earning capacity while he continued to work three days per week until about August 2002. The figures in Appendix B for the 2000-01 and 2001-02 years show what his net income would have been if he had not engaged in the film business.

5. The evidence as to the 2002-03, 2003-04 and 2004-05 years is patchy. That evidence and my comments on it can be summarised as follows:

   ·     During 2002-03, the plaintiff earned $5,000 gross as a lawyer.

   ·     His taxable income for that year also included $28,571 in respect of dividends and imputation credits. I have no evidence as to how that income was generated. I infer that it was not from the plaintiff's personal exertion.

   ·     The plaintiff's 2002-03 income tax return shows that he ceased carrying on his film business during that tax year. He declared an income of $1,556 from that business, and claimed the same amount by way of a depreciation deduction.

   ·     The plaintiff lodged an income tax return for the 2003-04 year, showing that he had no taxable income. He received a notice of assessment showing that no tax was payable.

   · The plaintiff received Centrelink payments totalling $1,955 covering the period from 5 August 2004 to 13 October 2004. He received a further $1,608 from Centrelink over the period 20 January 2005 to 25 March 2005. It is likely that those amounts will be recoverable by the Commonwealth from the plaintiff pursuant to Part 3.14 of the Social Security Act 1991 (Cth) as a result of the plaintiff enforcing the judgment in this action.

   ·     The plaintiff gave oral evidence that he moved to Germany in 2005 to get away from the defendant.  He also said that he continued working three days per week until that time, but that evidence is inconsistent with his tax returns, other documentation relating to income tax, and the documentation relating to Centrelink payments.

   ·     Mr Plover's first report states that the plaintiff worked three days per week as a solicitor from early 2000 to 2005. He appears to have based that statement on information in particulars filed by the plaintiff's former solicitors in October 2018. Those particulars were subsequently superseded and were not relied upon at the trial. They asserted that between early 2000 and 2005 the plaintiff was earning approximately $100,000 per annum gross working three days per week, and that he could have earned between $150,000 and $250,000 gross per annum if not incapacitated by "psychological sequelae". Those figures are inconsistent with the plaintiff's tax returns, the evidence as to Centrelink payments, and the evidence of Mr Burgess. I infer that the plaintiff's then solicitor was making an ambit claim with little or no basis in fact.

   ·     According to a letter dated 6 October 2020 by which the plaintiff's solicitors instructed Mr Plover, his employment as a lawyer continued until 30 June 2005. That date appears to be wrong. It is inconsistent with the tax returns and Centrelink information.

   ·     According to the history taken by Dr White, the plaintiff, after completing his articles, often only worked for three days per week because of his stress levels, and on other occasions worked three months full-time and then took three months off, saying that he did so to balance the stress levels and because he had a commitment phobia.

6. I have no evidence of any deterioration in the plaintiff's mental condition between 2000 and 2005. The little evidence available to me suggests that his mental condition remained more or less constant during that time. I doubt that he earned an income as a lawyer without declaring it in tax returns. However I am not in a position to make a finding that his residual earning capacity in the years 2002-03, 2003-04 and 2004-05 was lower than in the previous couple of years. Doing the best I can, I have assumed that he remained capable of earing $30,000 per annum net during those three years.

7. According to Mr Plover's report, the plaintiff worked as a writer and film-maker in Germany for seven years from 2005 to 2012, regularly earning less than the tax free threshold in Germany, which was the equivalent of about $30,000 per annum. Doing the best I can, I estimate the plaintiff's gross and net earnings for the six financial years from 2005-06 to 2010-11 inclusive to be $25,000 per annum.

8. It appears that the plaintiff returned to live in Australia during 2011. He lodged an Australian income tax return for the 2011-12 year. He gave evidence that he returned to work for his original employer, working three days per week, but his tax return shows that he was employed by a different entity. I infer that that entity employed him and provided his services to his original employer. The following information appears in his 2011-12 tax return:

   ·     He was employed as a lawyer from 24 October 2011.

   ·     His gross salary from that date until 30 June 2012 was $142,660.

   ·     He claimed various work-related tax deductions totalling $18,000.

   ·     He carried on a business during that financial year. The business involved internet publishing and broadcasting. He ceased business during that tax year. The business operated at a loss of $10,990.

   ·     He claimed other deductions unrelated to his residual earning capacity as a lawyer.

9. But for his other activities, his gross taxable income for 2011-12, making allowance for work-related deductions, would have been $124,660. If that had been his only income, he would have paid income tax of $34,074, a Medicare levy of $1,870, and a flood levy of $497, resulting in a net income of $88,219. I have adopted that figure as the value of his residual earning capacity in that financial year.

10. I have not been provided with any documentation relating to the plaintiff's income during the years 2013-14, 2014-15 and 2015-16. His oral evidence was to the effect that he continued to work for three days per week. I was provided with a copy of his 2015-16 income tax return, which showed a gross income of $115,196 from the provision of legal services. Doing the best I can, I estimate that he had the capacity to earn $115,000 per annum gross by exploiting his residual earning capacity as a lawyer during the years 2012-13, 2013-14, and 2014-15. The figures in Appendix B show what his net income would have been during those years on that basis, after allowing for income tax, the Medicare levy, and the Temporary Budget Repair Levy in 2014-15.

11. In the year 2015-16, the plaintiff's taxable income comprised $115,196 from the provision of legal services and $1,362 in interest. The figures in Appendix B for that year represent what he would have earned and paid if his taxable income had been $115,196.

12. In or about October 2016, as I have said, the plaintiff's employment was terminated when he was unwilling and unable to take on full-time work. His mental health deteriorated around that time, when he was required to give evidence against his father. He moved to Germany, and has not worked in Australia since. He filed an Australian income tax return for the 2016-17 year. It showed that he had a gross income of $76,330.

13. He obtained employment with a German company on an annual salary of €105,000. That contract was dated 18 March 2017. Details of his earnings in Europe in and since 2017 have been provided to Mr Plover. I have adopted Mr Plover's figures for the years 2017-18 to 2020-21 inclusive in Appendix B. I have made no allowance for foreign income taxes or other foreign taxes because I have no evidence from which I could calculate them. Mr Plover's figures include unemployment benefits. I have no evidence as to whether any foreign unemployment benefits might be refundable if the plaintiff recovers damages in this action. In particular, I do not have any evidence that, as a matter of foreign law, the plaintiff's foreign unemployment benefits were intended to be kept by him in the event of him recovering damages for a condition that caused an incapacity for work. If there were such an intention, those unemployment benefits would have to be ignored by me in assessing damages: National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569; Partridge v Hobart City Council [2012] TASFC 3, 22 Tas R 29. Since the plaintiff bears the onus of proof and has not provided any evidence as to matters that would warrant my ignoring his receipt of those benefits, it is appropriate that they be taken into account as income.

14. In relation to the 2016-17 year, the figure of $113,700 for gross income in Appendix B represents $76,330 earned in Australia plus €23,335 earned in Germany. The figures for income tax and levies represent the amounts payable in Australia on a taxable income of $76,330. The net figure represents the Australian and German gross income less those Australian deductions.

15. Mr Plover has not provided figures for the plaintiff's income in the current financial year (2021-22). As far as I know he is continuing to receive unemployment benefits, probably from the government of Germany. His German 2019 tax return shows that he received German unemployment benefits ("Arbeitslosengeld") in the sum of €10,418 in respect of the period from 2 July 2019 to 16 January 2020. That is a period of about 28 weeks. Assuming that the euro was and is worth about $1.60, that figure represents a payment of about $595.30 per week. For ease of calculation, I have assumed that the plaintiff has been entitled to receive benefits at the rate of $600 per week tax free for the 25 weeks from 1 July 2021 to 22 December 2021.

Past impairment of earning capacity – Contingencies

1. The calculations in Appendices A and B suggest that, subject to factors not yet taken into account, the plaintiff's damages for the impairment of his earning capacity up to 22 December 2021 should be assessed as follows:

   $2,699,027 minus $1,136,412 = $1,562,615

2. I will assess damages in respect of the loss of past superannuation contributions separately. I will also assess interest separately. At this point, it is appropriate to consider what adjustment, if any, should be made to the figure of $1,562,615 to take account of adverse and favourable contingencies.

3. The adverse contingencies that need to be taken into account in respect of the period since 1999 include illness, injury and unemployment. There is very little risk that the plaintiff would have suffered any significant loss of income as a result of any of those factors. But for his mental health problems, he would have been a very employable legal practitioner. Perhaps more significantly, there is a chance that he might have interrupted his legal career at some stage to travel the world, or to pursue unremunerative creative pursuits such as writing or film making.

4. On the other hand, substantial allowance should be made for favourable contingencies. As I have said, Mr Burgess estimated the income that the plaintiff would have earned on the basis of a number of different scenarios. My figures in Appendix A are based on the least remunerative scenario. The figures provided by Mr Burgess suggest that the plaintiff's income, if unaffected by mental health problems, would have remained about the same until about 2013, whether he remained with the same employer or moved to another business. However his figures suggest that the plaintiff would have earned more from about 2013 if he had moved to another business, or if he had remained with the original company and things had gone well for him. Mr Burgess estimated the plaintiff's hypothetical gross earnings, inclusive of superannuation, as shown in the following table:

"Date   from	Had he remained Low                   High	Had he moved to another business Small firm    Large firm
1-Jul-99	$51,000	$51,000
1-Jul-00	$63,000	$63,000
1-Jul-01	$75,000	$75,000
1-Jul-02	$88,000	$88,000
1-Jul-03	$105,000	$105,000
1-Jul-04	$120,000	$120,000
1-Jul-05	$135,000	$135,000
1-Jul-06	$150,000	$150,000
1-Jul-07	$165,000	$165,000
1-Jul-08	$200,000	$200,000
1-Jul-09	$215,000	$215,000
1-Jul-10	$230,000	$230,000
1-Jul-11	$240,000	$240,000
1-Jul-12	$250,000	$250,000
1-Jul-13	$260,000           $280,000	$300,000     $330,000
1-Jul-14	$270,000           $300,000	$320,000     $350,000
1-Jul-15	$280,000           $320,000	$330,000     $370,000
1-Jul-16	$290,000           $340,000	$340,000     $400,000
1-Jul-17	$300,000           $360,000	$350,000     $430,000
1-Jul-18	$310,000           $380,000	$360,000     $460,000
1-Jul-19	$320,000           $400,000	$370,000     $490,000
1-Jul-20	$320,000           $400,000	$370,000     $490,000"

1. This table indicates that over the last eight financial years the plaintiff could well have earned nearly $1 million more than he would have on Mr Burgess' lowest figures, before tax and inclusive of superannuation. After excluding superannuation and taxes, the plaintiff's net earnings over the last eight financial years could well have been higher than the figures I have calculated in Appendix A by anything up to $400,000, or perhaps a little more.

2. Mr Burgess stated in his report that from 2003 to 2007 or 2008 many of Australia's best lawyers at the plaintiff's level left for the United Kingdom and other markets, and that lawyers like him were able to find work easily in other countries. There is a chance that the plaintiff would have left Australia to work overseas at around that time. However I am unable to say whether, generally speaking, lawyers who made that sort of move ended up earning more or less than they would have earned if they had remained in Australia. The possibility of leaving Australia to work overseas is therefore a neutral factor when it comes to consideration of adverse and favourable contingencies.

3. Appendix A shows that, on the basis of the lowest figures estimated by Mr Burgess, the plaintiff's net earnings, if continuously employed from 1 July 1999 to today, would have been about $2.7 million. If the only relevant contingencies were adverse contingencies, it would have been appropriate to reduce that figure by about 10%. If the only relevant contingencies were favourable contingencies, it would have been appropriate to increase that figure by about 10%. In my view the appropriate course is therefore to make no adjustment for contingencies. I assess the plaintiff's damages for the impairment of his earning capacity (excluding superannuation and interest) to today in the sum of $1.563 million.

Past superannuation contributions

1. My calculations relating to past superannuation contributions are set out in Appendix C to these reasons. The purpose of those calculations is to estimate the amount by which the payment of superannuation contributions for the benefit of the plaintiff in the past has been reduced as a result of the impairment of his earning capacity. In relation to each financial year, I have compared the gross income that the plaintiff would have earned, excluding superannuation, with his actual or estimated gross income, and calculated the difference between the two figures. The figures for the gross income that he would have earned have been derived from Appendix A. The figures for his actual gross income, where possible, have been derived from the documentary evidence. Otherwise, I have had to make estimates. I have no evidence as to whether the plaintiff's foreign employers contributed to superannuation schemes or made similar arrangements for the benefit of the plaintiff, but it is likely that they did. I have no evidence as to whether any foreign arrangements were more generous or less generous than the Australian superannuation arrangements. For the current financial year, I have assumed that no employer has made any contributions for the plaintiff's benefit since his income consists solely of unemployment benefits.

2. My calculations have produced annual figures for the diminution of the plaintiff's gross income. For each year, I have applied the percentage which was fixed by law for Australian employers' superannuation contributions. Thus, for example, for the 1999-2000 financial year, I have calculated that the plaintiff's gross income was reduced by $9,740 as a result of the impairment of his earning capacity. Australian employers were then required to pay superannuation contributions equal to 7% of gross salary. I have calculated that the plaintiff lost the benefit of $682 in contributions, representing 7% of $9,740. I have performed similar calculations for each financial year. My calculation for the current financial year relates to the 25 weeks from 1 July 2021 until 22 December 2021, the date of this judgment. As a result, I have calculated that the plaintiff has lost superannuation contributions totalling $256,901. Rounding this figure up, I assess his damages under this head in the sum of $257,000, which does not include interest.

Interest

1. The plaintiff has sought an award of pre-judgment interest pursuant to s 35A of the Supreme Court Civil Procedure Act 1932. That section did not commence until 9 September 2019, but it expressly provides for interest to be awarded "for the whole or any part of the period commencing on the day after the day on which the cause of action arose and ending on the day on which the judgment is entered". It therefore operates retrospectively. The awarding of pre-judgment interest is discretionary, as is the interest rate, but a maximum interest rate is fixed by r 5A of the Supreme Court Rules. Under that rule, the maximum interest rate is a rate equal to 4% plus the most recent cash rate published by the Reserve Bank of Australia as at 1 January and 1 July each year. The maximum rate of pre-judgment interest for the six months commencing on 1 July 2021 is 4.1%.

1. Wood J considered some of the authorities relating to the discretion to award pre-judgment interest in Dann v Port Sorell Bowls Club Inc (No 2) [2020] TASSC 53. The following principles are clear from her Honour's analysis:

   ·     The power to award pre-judgment interest is designed to assist the Court to do more complete justice between the parties.

   ·     The purpose of an award of interest is to compensate a plaintiff for being kept out of monies that, in law, were payable to him.

   ·     The power to award interest is also intended to provide discouragement to defendants from delaying the settlement of claims or the conclusion of proceedings. However the discretion is not to be exercised punitively.

   ·     All of the relevant circumstances have to be given due and proper consideration.

   ·     Late notice of a claim for interest is a factor that can weigh against the making of an award of interest.

2. As I have said, the plaintiff was unable to bring this action until the Limitation Act was amended with effect from 1 July 2018. He commenced this action five days later. The delay in instituting proceedings was beyond his control, and therefore does not weigh against the exercise of the discretion to award pre-judgment interest. When he instituted the proceedings, pre-judgment interest could not be claimed. That was still the position when his former solicitors delivered particulars in October 2018. The later particulars, which were relied upon at the trial, made it clear that interest was being claimed.

3. The plaintiff has been substantially disadvantaged by the impairment of his earning capacity over the last 21 years. I have no evidence as to his assets and liabilities, but it is obvious that the impairment of his earning capacity must have interfered very substantially with his ability to acquire real estate and other assets with a capacity to grow significantly in value. It is therefore appropriate that pre-judgment interest be awarded for the purpose of restoring the plaintiff, to the extent possible, to the position that he would probably have been in if his earning capacity had not been impaired. I have therefore decided that it should be an award of simple interest, calculated at the rate of 4% per annum.

4. My calculations of pre-judgment interest are set out in Appendix D to these reasons. In respect of each financial year from 1999-2000 onwards, I have calculated the difference between the plaintiff's hypothetical net income for that year that appears in Appendix A and his actual net earnings for that year as per Appendix B. That gives a figure for the plaintiff's net loss of earnings for the financial year. I have then adjusted that figure to allow for the superannuation contributions that an employer would have made in respect of those lost earnings, adopting the appropriate figure from Appendix C. I have then calculated simple interest on that figure at the rate of 4% for the period from the end of that financial year to 31 December 2021. Thus, for example, for the year ending 30 June 2000, I have allowed 86% interest, representing 21.5 years at 4% per annum.

5. Using that methodology, I have calculated interest for the period ending on 31 December 2021 to amount to $579,382. Because this judgment is being delivered nine days before that date, the award of interest on the damages for the past impairment of the plaintiff's earning capacity, taking into account superannuation, will be $577,000. I will deal separately with pre-judgment interest on the plaintiff's damages for past medical and pharmaceutical expenditure and non-economic harm.

Impairment of earning capacity – Future

1. Mr Plover undertook calculations based on an assumption that, but for the defendant's sexual abuse, the plaintiff would have worked full-time until retiring in late 2040. I am satisfied that that is a reasonable assumption to make for the purpose of calculating a yardstick figure in relation to the value of hypothetical future earnings. It is common for damages for future economic loss to be assessed on the basis that a plaintiff will work full-time until becoming eligible to receive an age pension. Men born in or after 1957 will become eligible to receive age pensions on attaining the age of 67 years: Social Security Act 1991 (Cth), s 23(5A). However there is little chance that a successful corporate lawyer would take the age of eligibility for such a pension into account in deciding when to retire. I will refrain from publishing the plaintiff's date of birth because it might tend to identify him.

2. Any award of damages to compensate a payment for future financial losses must be discounted to make allowance for early payment, the capacity to earn interest on an invested sum, and the incidence of taxation on interest income. The Civil Liability Act 2002 contains provision for a discount rate of 5% in s 28A. However, by virtue of s 3B(1)(a) of that Act, it does not apply in relation to civil liabilities for sexual assaults. Mr Plover's first report contained a lot of material as to what an appropriate discount rate should be. However, since no statutory discount rate is applicable, I am bound to apply a discount rate of 3% in accordance with the High Court's decision in Todorovic v Waller (1981) 150 CLR 402.

3. At [64] above, I assumed that the plaintiff, if his earning capacity had not been impaired, would now be earning about $300,000 per annum before tax, and calculated that that equated to $3,806.40 per week net. That was based on Mr Burgess' least optimistic scenario, which involved an estimated annual income, net of superannuation but before tax, of $292,237 for 2020-21 on my calculations. Once again, it is necessary to take into account adverse and favourable contingencies.

4. Mr Plover undertook future economic loss calculations based on the various scenarios considered by Mr Burgess. When he adopted a 3% discount rate, he calculated that the future losses for the period from July 2021 to late 2040 would have ranged from $3,198,200 to $4,546,700. As I understand it, those figures are based on assumptions as to the plaintiff's gross remuneration package, inclusive of superannuation and before tax. Although I am taking a different approach in relation to superannuation and tax, these figures are significant because they illustrate the fact that, if Mr Burgess' best case scenario had eventuated, the plaintiff's income would have been nearly 50% higher than it would have been if the least remunerative scenario had eventuated. The favourable contingencies that have to be taken into account include receiving substantially higher remuneration, and continuing to work after 2040, possibly part-time but possibly full-time.

5. The adverse contingencies that have to be taken into account again include illness, injury, unemployment between jobs, and interruption or abandonment of the plaintiff's legal career to travel or to pursue less remunerative creative interests. The possibilities of early death and early retirement must also be taken into account. Once again, I take the view that the favourable contingencies and the adverse contingencies more or less cancel each other out. By adopting Mr Burgess' least remunerative scenario as a starting point, I have in effect made appropriate allowance for all contingencies.

6. The amount required to compensate the plaintiff for a loss of $3,806.40 per week from now until late 2040, a period of 19 years, adopting the required discount rate of 3%, is calculated as follows:

   $3,806.40 x 759 = $2,889,057.60.

   The multiplier of 759 is derived from Luntz, Assessment of Damages for Personal Injury and Death, 4^th ed, Table 2, page 683.

7. That figure will have to be reduced to take account of the plaintiff's residual earning capacity over the next 19 years. At present he is unfit for work. His mental health problems are likely to improve in the future, but the timing and extent of any improvement are hardly predictable at all. For one thing, the plaintiff could have great difficulty enforcing this judgment, and that might have a significant impact on his mental health for years to come. It is fair to assume that he will never earn the sort of income that he could have earned if his earning capacity had not been impaired. On the other hand he has shown a capacity to obtain well remunerated employment in other countries when his psychological symptoms have abated. The longer he spends out of the work force, and the older he gets, the harder it will be for him to find well-paid work if his mental health substantially improves. Taking all of these matters into account, I estimate that his retained earning capacity over the next 19 years is equal to 25% of the earning capacity that he would have had without impairment.

8. I therefore assess his damages for the impairment of his future earning capacity in the sum of $2.022 million. That represents about 75% of the figure of $2,889,057.

Loss of future superannuation benefits

1. At present Australian employers are required to pay superannuation contributions for the benefit of their employees at a rate equal to 10% of gross salary. However s 19(2) of the Superannuation Guarantee (Administration) Act 1992 (Cth) requires the rates of contribution to be increased as follows:

   "Year starting on 1 July 2022               10.5%

   Year starting on 1 July 2023               11%

   Year starting on 1 July 2024               11.5%

   Year starting on or after 1 July 2025     12%".

2. Because the required superannuation contribution level will be 12% for most of the next 19 years, it is appropriate to adopt a percentage slightly below 12% in calculating damages under this head for the whole of that period. I consider it appropriate to adopt a figure of 11.5%.

3. But for the sexual abuse the plaintiff would have been earning about $300,000 gross per annum. That equates to $5,769.23 per week. Superannuation contributions of 11.5% would have amounted to $663.46 per week. The amount required to compensate a person for a weekly loss of that amount for 19 years, adopting the required discount rate of 3%, using the multiplier of 759 that I used at [101] is $503,567. This has to be reduced by 25% to take account of the plaintiff's residual earning capacity. That results in a figure of $377,675. Rounding that figure up, I award $378,000 under this head.

Past medical and pharmaceutical expenses

1. The plaintiff commenced seeing Dr Thompson in 1999. Dr Thompson has records going back to May 2002. From that month until July 2021 the plaintiff consulted him 46 times, and paid a total of $8,548 for those consultations.

2. It is necessary to make an estimate as to the cost of his consultations with Dr Thompson prior to May 2002. Counsel for the plaintiff submitted that I should award damages for 21 consultations over the three preceding years, at a cost of $158 per session. That was the amount Dr Thompson was charging in mid-2002. The estimate of 21 consultations is conservative. I accept the submission. I will allow $11,866 in respect of consultations with Mr Thompson prior to 20 May 2002.

3. The plaintiff saw a psychologist, Mr Shields, 15 times between October 2016 and August 2020. He charged $130 per consultation, making a total of $1,950. That sum must also be allowed.

4. The plaintiff gave oral evidence about prescribed medications to the following effect. He was first prescribed antidepressants by his general practitioner at a time between 1999 and around 2001. He continued taking antidepressants under Dr Thompson's supervision. He subsequently "transitioned off" antidepressants. He took them again in more complex forms from 2018 onwards. At the time of the trial he was taking Venlafaxine.

5. He has apparently not retained receipts for any purchases prior to September 2018. The material before me includes receipts for purchases in Europe for sums totalling €457.33 over the period from 26 September 2018 to 8 December 2020, as well as two receipts for purchases in Australia totalling $164.85 in March and August 2019.

6. The material that I have from Dr Thompson does not include a summary of past pharmacological treatment. In Dr White's first report, in December 2016, he said that the plaintiff was "no longer taking antidepressants or other psychiatric medications". In Dr White's second report, in May 2020, he noted that the plaintiff was then being prescribed psychiatric medications.

7. I infer that the receipts kept by the plaintiff since 2018 are incomplete. Those tendered at the trial reveal expenditure totalling a little under $1,000. Doing the best I can, I assess his damages in respect of past pharmaceutical expenses in the sum of $2,000.

8. In summary, the plaintiff is entitled to recover the following amounts under this head:

   Dr Thompson (to 20 May 2002)     $11,866

   Dr Thompson (since then)              $8,548

   Mr Shields  $1,950

   Pharmaceuticals  $2,000

   Total (excluding interest)              $24,364

9. If the plaintiff were to recover simple interest at 4% on the sum of $11,866 paid to Dr Thompson from May 2002 to date, that figure would exceed $9,000. I assess the plaintiff's damages under this head in the sum of $34,000, inclusive of interest.

Future medical and pharmaceutical expenses

1. In his first report, in December 2016, Dr White said the following as to the plaintiff's likely requirements by way of further treatment, and the relevant costs:

   "There is little doubt that ... will require ongoing psychiatric and psychological treatments over a significant period of time, probably for several years, and even indefinitely.

   At the very least, he is likely to require up to 6 to 12 sessions annually with a psychiatrist indefinitely, depending on the level of stressors in his life.

   He may benefit from specific medications targeting intrusive PTSD phenomena.

   At the same time, it might be that ... will eventually feel able to participate in exposure-based trauma focused psychotherapy (gradual introduction to the traumatic events and careful, repeated, detailed exploration) via cognitive behaviour therapy (CBT) or eye movement desensitisation and reprocessing (EMDA). This would typically involve up to 24 or more sessions with a psychologist over 1-2 years.

   The costs involved in such a treatment plan, at the typical rates of the AMA's recommended fee of $350.00 per session for a psychiatrist and the Australian Psychological Association's recommended fee of $240.00 per session with a psychologist, could cost in the order of $10,000.00 to $12,000.00 in the first year.

   Further costs of up to approximately one-third to half of these amounts for ongoing maintenance treatments might be required in the second and third years of treatment, with diminishing but persisting costs thereafter. In ... case, as described above, his circumstances appear to be somewhat extreme, and he therefore may require these treatments in the foreseeable future, even lifelong.

   To compound his situation, ... might also elect to engage in more intensive psychotherapy of a psychodynamic or psychoanalytic type, involving weekly sessions for 2-3 years, and therefore totalling 80 to 140 sessions with a psychiatrist. In these sessions, an individual's coping mechanisms require major changes of approach, behaviours and insights. The cost of these treatments can be in the order of $30,000.00 to $40,000.00.

   The use of the latter type of treatment does not preclude the abovementioned ongoing general psychiatric and psychological treatments."

2. Having regard to the plaintiff's age, I estimate that he has a life expectancy of about 35 years. If he were to see a psychiatrist nine times per year at a cost of $350 per session, that would represent expenditure averaging a little over $60 per week. The amount required to compensate a person for expenditure of $60 per week over the next 35 years can be calculated as follows:

   $60 x 1138 = $68,280.

   The multiplier of 1138 is derived from Luntz (above), Table 2, page 683. However the plaintiff may require more sessions annually, or fewer, and might make a substantial recovery sooner rather than later.

3. There are so many uncertainties in relation to the plaintiff's future medical and pharmaceutical expenses that the only appropriate course is to take a broad brush approach and to adopt a figure which could well be substantially excessive or substantially inadequate, depending on his progress. I think it likely that he will require substantially more treatment than nine sessions with a psychiatrist annually for a good number of years to come. Doing the best I can, I assess his damages under this head in the sum of $150,000.

Non-economic harm (Pain and suffering)

1. In respect of the non-economic consequence of the defendant's torts, the plaintiff has claimed compensatory damages, including aggravated damages, but not exemplary damages.

2. Exemplary damages are not compensatory, but are intended to punish a defendant and to deter that defendant and others from behaving in the same or similar ways. The defendant in this case has already been punished by means of a conviction and a sentence of imprisonment. Because substantial punishment has been inflicted on him for substantially the same conduct as that which is the subject of this action, exemplary damages could not be awarded: Gray v Motor Accident Commission (1998) 196 CLR 1 at [40]; Watts v Leitch [1973] Tas SR 16.

3. Aggravated damages however are "compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like": Lamb v Cotogno (1987) 164 CLR 1 at 8. They can be awarded in respect of the "high-handed, malicious, insulting or oppressive manner", in which a defendant commits a tort: State of Western Australia v Cunningham (No 3) [2018] WASCA 207; Crampton v Nugawella (1996) 41 NSWLR 176 at 188-189; Henry v Thompson [1989] 2 Qd R 412 at 415-416; Lackersteen v Jones (1988) 92 FLR 6 at 39-42. Aggravated damages may be awarded in respect of a defendant's conduct not just in the commission of a tort or torts, but also during the period up to the trial of the action: Broome v Cassell& Co Ltd [1972] AC 1027 at 1071; De Reus v Gray [2003] VSCA 84, 9 VR 432 at [28]. This is an appropriate case for aggravated damages to be awarded because of the repeated breaches of trust on the part of the defendant in sexually abusing his son, and because of the unusually dreadful conduct on his part during and since 1999 as outlined above at [11]-[33].

4. Counsel for the plaintiff provided me with references to various cases in which damages have been awarded for assault and battery in the form of sexual abuse: M v Nesbitt [2012] NSWDC 152; Erlich v Leifer [2015] VSC 499; Dryden v Jones [2018] NSWDC 223; P v D [2018] NSWDC 277; P2 v D2 [2019] NSWDC 84; Waks v Cyprys [2020] VSC 44; Perez v Reynolds [2020] VSC 537. Another similar case is PCB v Geelong College [2021] VSC 633. If the Civil Liability Act applied to this case, s 28(1) would permit me to "refer to earlier decisions of ... other courts for the purpose of establishing the appropriate award in the proceedings". As that Act does not apply, I am required to proceed in accordance with the decision of the High Court in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118. As their Honours said in that case at 125, I must "be aware of and give weight to current general ideas of fairness and moderation". As I said in Mercer v Allianz Australia Insurance Ltd (No 2) [2013] TASSC 35 at [120], it was well known that awards for damages for non-economic loss were for many years significantly lower in Tasmania than in most, if not all, mainland jurisdictions, but there is no reason why that should any longer be so, given the mobility of the Australian population. This case, like Mercer, illustrates that mobility. The appropriate course is to give weight to current general ideas of fairness and moderation on the part of Australian courts generally, not just this Court.

5. The sexual abuse of the plaintiff by his father has made his life a misery. Whilst there is no suggestion that the sexual abuse involved penetration, it had devastating consequences for the plaintiff's mental health. It destroyed the father-son relationship in his formative years. His adult life has been affected by his complex post-traumatic stress disorder and his depression in practically every possible way. There are prospects for improvement, but certainly not full recovery.

1. Having  regard to all the circumstances, I assess the plaintiff's compensatory damages, including aggravated damages, for the non-economic consequences of the defendant's torts in the sum of $300,000.

2. I have a discretion to award interest in respect of damages awarded for non-economic harm. Interest on such damages is not to be assessed at a commercial rate because the detriment suffered by the plaintiff is not to be equated with the amount which those damages would have earned during the pre-trial period if invested at a commercial rate of interest: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657.

3. I consider that a modest award of interest in respect of the damages for non-economic harm is appropriate. For the purposes of assessing interest, I will regard $225,000 of the award of $300,000 as referable to the period from the first assault and battery to the date of this judgment. That is a period of well over 30 years. It is necessary to remember that the relevant non-economic harm involved suffering in long distant years, intermediate years, and recent years. I think it appropriate to award 30% of $225,000 by way of interest in respect of the period exceeding 30 years since the commencement of the sexual abuse. I assess the interest on the award of damages for non-economic harm in the sum of $67,500.

Conclusion

1. The amounts assessed above are as follows:

   Past impairment of earning capacity  $1,563,000

   Past superannuation contributions  $257,000

   Interest on those amounts  $577,000

   Future impairment of earning capacity  $2,022,000

   Future loss of superannuation contributions               $378,000

   Past medical and pharmaceutical expenses                  $34,000

   Future medical and pharmaceutical expenses             $115,000

   Non-economic harm  $300,000

   Interest re past non-economic harm  $67,500

   Total  $5,313,500

2. I order that judgment be entered for the plaintiff against the defendant for the sum of $5,313,500.

APPENDIX A – HYPOTHETICAL PAST EARNINGS

Financial Year	Income + Super $	Super %	Super $	Gross Income $	Income Tax $	Medicare Levy $	Other Levies $	Net Income $
1999-2000	7%	1,668	40,211	11,153	603	28,455
2000-01	63,000	8%	4,667	58,333	14,880	875	42,578
2001-02	75,000	8%	5,556	69,444	200,19	1,042	48,383
2002-03	88,000	9%	7,266	80,734	25,334	1,211	54,189
2003-04	105,000	9%	8,670	96,330	32,082	1,445	62,803
2004-05	120,000	9%	9,908	110,092	37,455	1,651	70,985
2005-06	135,000	9%	11,147	123,853	41,761	1,858	80,234
2006-07	150,000	9%	12,385	137,615	42,896	2,064	92,655
2007-08	165,000	9%	13,624	151,376	47,719	2,271	101,386
2008-09	200,000	9%	16,514	183,486	59,569	2,752	121,165
2009-10	215,000	9%	17,752	197,248	63,612	2,959	130,697
2010-11	230,000	9%	18,991	211,009	68,504	3,165	139,340
2011-12	240,000	9%	19,817	220,183	72,632	3,303	1,451	142,797
2012-13	250,000	9.25%	21,167	228,833	76,522	3,432	148,879
2013-14	260,000	9.5%	22,557	237,443	80,396	3,562	153,485
2014-15	270,000	9.5%	23,425	246,557	84,506	4,931	4,931	152,207
2015-16	280,000	9.5%	24,292	255,708	88,616	5,114	5,114	156,864
2016-17	290,000	9.5%	25,160	264,840	92,410	5,297	5,297	161,836
2017-18	300,000	9.5%	26,027	273,973	96,520	5,479	171,974
2018-19	310,000	9.5%	26,895	283,105	100,494	5,662	176,949
2019-20	320,000	9.5%	27,763	292,237	104,604	5,844	181,789
2020-21	320,000	9.5%	27,763	292,237	102,174	5,844	184,219
2021-22	10%	14,423	95,160
Totals	$387,437	$2,699,027

APPENDIX B – RESIDUAL EARNING CAPACITY

Financial Year	Gross Income $	Income Tax $	Medicare Levy $	Other Levies $	Net $
1999-2000	30,471	6,382	457	23,632
2000-01	39,000	8,080	585	30,335
2001-02	38,000	7,780	570	29,650
2002-03	5,000	30,000
2003-04	0	30,000
2004-05	6,000	30,000
2005-06	25,000	25,000
2006-07	25,000	25,000
2007-08	25,000	25,000
2008-09	25,000	25,000
2009-10	25,000	25,000
2010-11	25,000	25,000
2011-12	124,660	34,074	1,870	497	88,219
2012-13	115,000	30,497	1,725	82,778
2013-14	115,000	30,497	1,725	82,778
2014-15	115,000	30,497	2,300	2,300	79,903
2015-16	115,196	30,569	2,304	2,304	80,019
2016-17	113,700	16,354	2,274	2,274	91,698
2017-18	37,300	37,300
2018-19	151,000	151,000
2019-20	79,500	79,500
2020-21	24,600	24,600
2021-22	15,000
Total	$1,136,412

APPENDIX C – PAST SUPERANNUATION CONTRIBUTIONS

Financial Year	Hypothetical Gross $	Residual Gross $	Lost Gross $	Super %	Lost Contributions $
99-00	40,211	30,471	9,740	7%	682
00-01	58,333	39,000	19,333	8%	1,547
01-02	69,444	38,000	31,444	8%	2,516
02-03	80,734	30,000	50,734	9%	4,566
03-04	96,330	30,000	66,330	9%	5,970
04-05	110,092	30,000	80,092	9%	7,208
05-06	123,853	25,000	98,853	9%	8,897
06-07	137,615	25,000	112,615	9%	10,135
07-08	151,376	25,000	126,376	9%	11,374
08-09	183,486	25,000	155,486	9%	14,264
09-10	197,248	25,000	172,248	9%	15,502
10-11	211,009	25,000	186,009	9%	16,741
11-12	220,183	124,660	95,523	9%	8,597
12-13	228,833	115,000	113,833	9.25%	10,530
13-14	237,443	115,000	122,443	9.5%	11,632
14-15	246,575	115,000	131,575	9.5%	12,500
15-16	255,708	115,000	140,708	9.5%	13,367
16-17	264,840	115,196	149,644	9.5%	14,216
17-18	273,937	113,700	160,273	9.5%	15,226
18-19	283,105	37,000	246,105	9.5%	23,380
19-20	292,237	151,000	141,237	9.5%	13,418
20-21	292,237	79,500	212,737	9.5%	20,210
21-22	144,231	144,231	10%	14,423
Total	$256,901

APPENDIX D – INTEREST ON PAST LOSSES

Financial Year	Hypothetical Income $	Actual Income $	Lost Income $	Lost Super $	Annual Loss $	Simple Interest %	Interest $
99-00	28,455	23,632	4,823	682	5,505	86%	4,734
00-01	42,578	30,335	12,243	1,547	13,790	82%	11,308
01-02	48,383	29,650	18,733	2,516	21,249	78%	16,574
02-03	54,189	30,000	24,189	4,566	28,755	74%	21,279
03-04	62,803	30,000	32,803	5,970	38,773	70%	27,141
04-05	70,985	30,000	40,985	7,208	48,113	66%	31,755
05-06	80,234	25,000	55,234	8,897	64,131	62%	39,761
06-07	92,655	25,000	67,655	10,135	77,790	58%	45,118
07-08	101,386	25,000	76,386	11,374	87,760	54%	47,390
08-09	121,165	25,000	96,165	14,264	110,429	50%	55,215
09-10	130,697	25,000	105,697	15,502	121,199	46%	55,752
10-11	139,340	25,000	114,340	16,741	131,081	42%	55,054
11-12	142,797	88,219	54,578	8,597	63,175	38%	24,006
12-13	148,879	82,778	66,101	10,530	76,631	34%	26,055
13-14	153,485	82,778	70,707	11,632	82,339	30%	24,702
14-15	152,207	79,903	72,304	12,500	84,804	26%	22,049
15-16	156,864	80,019	76,845	13,367	90,212	22%	19,847
16-17	161,836	91,698	70,138	14,216	84,354	18%	15,184
17-18	171,974	37,300	134,674	15,226	149,900	14%	20,986
18-19	176,949	151,000	25,949	23,380	49,329	10%	4,933
19-20	181,789	79,500	102,289	13,418	115,707	6%	6,942
20-21	184,219	24,600	159,619	20,210	179,829	2%	3,597
Total	$579,382