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$1.5M child abuse award encouraging for civil cases

A recent Victorian case in which a man has been awarded more than $1.5 million for school child sex abuse gives real hope to survivors who choose to have their abuse dealt with through the courts via civil litigation.

In this blog, I analyse the legal decision in detail as it offers guidance on how the courts are favourably dealing with civil case claims for historic child abuse.

I also explain how the judge arrived at the $1.5 million figure.

The case should encourage others to come forward.

The case

The Supreme Court of Victoria’s Institutional Liability List, which was established on 10 February 2020 in response to the growth in childhood abuse claims being issued in court, has delivered another decision that is favourable to abuse survivors.

On 28 August 2020, the Victorian Supreme Court awarded the Plaintiff $1,552,725 for abuse he suffered at Myrtleford Primary School in the early 1980s.

The case, known as Perez v Reynolds & Anor [2020] VSC 537 was issued against the State of Victoria (Department of Education) and Vincent Reynolds, the offending teacher. The Plaintiff, aged 47 at the time of the decision, was sexually abused by Reynolds on at least 6 occasions over a period of months as a child, being touched on the genitals, groin and buttocks in the classroom. He was immediately affected by the abuse and developed a diagnosed psychiatric injury. After the abuse, the Plaintiff lost his love of school and his keen interest in music. He received poor grades in secondary school and failed Year 10, repeating that year before going to work for his bricklayer father. He was also later self-employed at times.

In 2019, Reynolds faced criminal charges and pleaded guilty to indecently assaulting the Plaintiff and 37 other children. Reynolds neither filed a defence nor participated in the civil proceedings, and was serving his custodial sentence at the time.

The Plaintiff alleged the State of Victoria was directly negligent for the abuse and also vicariously liable for Reynolds’ conduct. The Plaintiff initially sought aggravated and exemplary damages against the State but did not ultimately pursue this. After the Plaintiff issued proceedings, the State of Victoria admitted negligence but did not admit vicarious liability. The Court was therefore called upon to assess the amount of compensatory damages.

The Plaintiff had been too ashamed to disclose the abuse to anyone until being contacted by the Wodonga police in 2017 as part of their criminal investigations into Reynolds. After that time, he disclosed the abuse to his wife for the first time. The Plaintiff had not received any medical treatment for his psychiatric injury, and, in the course of his civil claim, was assessed by two medico-legal psychiatrists (including one arranged by the lawyers for the State of Victoria) as having complex Post-Traumatic Stress Disorder and Chronic Dysthymic Disorder entirely attributable to the sexual abuse. He had struggled with suicidal thoughts over the years, at one stage taking a shotgun from his father’s wardrobe but being talked out of taking any action by his mother and sister-in-law who were in the house at the time.

Breakdown of the payment awarded

The damages awarded included $265,000 for pain and suffering, over $1,000,000 for past and future economic loss, $212,500 for past and future loss of superannuation and almost $19,000 for future medical expenses.

As pointed out by Justice Forbes:

“The aim of awarding damages is to fix a sum that as will, as nearly as possible, put the injured person in the same position as if he had not sustained the injury. An award of damages for the loss of quality of life is an attempt to recognise the impact that the injury has had and will continue to have on the life that the plaintiff is living … I do accept that the sexual abuse that [the Plaintiff] experienced has deeply affected all aspects of the life that he is living. It has impacted upon family and intimate relationships, as well as leisure and work activities in varying ways. I accept that his young age at the time of the abuse has embedded the events in his mind so they have impacted many of the decisions he has made about the direction of his life.”

In assessing pain and suffering, the judge noted that the Plaintiff was a relatively young man who had not sought treatment for a lengthy time and who felt a sense of failure and was poorly armed to handle adversity.

Calculating economic loss

At the time of hearing, the Plaintiff was a self-employed tradesperson but had never received any formal trade qualifications. He gave evidence of how his excessive drinking and cannabis use had affected his working life and life more generally. In assessing his economic loss, Justice Forbes stated:

“Where a person is injured as a child and those injuries have a long term or lifelong impact, there is inevitably a level of speculation as to the effect on the entirety of their working life. The injury may impact upon the available or likely choice of career or the advancement or success in that career, or both. These matters such as aptitude, academic or otherwise, for a chosen career are necessarily speculative to a greater or lesser extent.”

Her Honour was impressed by the Plaintiff’s work ethic and accepted that if it were not for the abuse and its aftermath, he would have likely sought and obtained a trade qualification, as one of his brothers had done and another commenced.

She noted the Plaintiff’s work history had been marred by inconsistency and held that if the Plaintiff had not been injured, he would have had the prospect of working in the family business or been capable of moving into other employment, including working for others as a subcontractor or by himself.

She predicted that he would retire at age 67 in terms of his future economic loss based on his solid work ethic. She referred to the difficulties in assessing likely earnings in a trade in the circumstances where, for example, up to 50% of bricklayers are self-employed and there is little data available about their earnings. In reaching her calculations, the judge referred to expert accounting evidence obtained for the Plaintiff’s case and analysed this carefully. She also referred to the lack of any other health or other factors affecting the Plaintiff’s loss, only making a modest 15% reduction for vicissitudes.

In the course of the trial regarding the assessment of damages, the State of Victoria unsuccessfully sought to attack the Plaintiff’s credibility in a number of respects, including regarding his marriage and working life. Justice Forbes acknowledged this “sustained credit attack”, but was largely unconvinced by the State’s attempts.

In her opinion of the Plaintiff:

“My general impression was that he did the best he could to answer truthfully questions that traversed his whole life experience. His memory was, as you might expect, better in some areas than in others.”

Conclusion: civil abuse claims offer real hope to survivors

This decision of Perez v Reynolds & Anor provides further guidance to both plaintiffs and defendants as to how the new Institutional Liability List is approaching civil abuse claims. It provides comfort to plaintiffs that their matters will be assessed fairly; that even where plaintiffs have not sought ongoing medical treatment over the years, they can be awarded significant compensation for pain and suffering and that even where they have worked over the years, with good analysis and evidence, even if imperfect, a claim for significant economic loss can be sustained.