Supreme Court New South Wales Medium Neutral Citation: AA v PD [2022] NSWSC 1039 Hearing dates: 25 and 26 July 2022 Date of orders: 05 August 2022 Decision date: 05 August 2022 Jurisdiction: Common Law Before: Chen J Decision: Verdict and judgment for the plaintiff in the sum of $217,550.00 Catchwords: TORTS — Trespass to the person — assault and battery — historical sexual misconduct — claim for damages due to psychiatric harm — whether misconduct caused harm — expert evidence TORTS — Trespass to the person — whether trespass to the person is an independent tort EVIDENCE — Tendency evidence — Civil proceedings — where no tendency notice provided — whether open to use evidence for tendency purpose — where not open — where evidence could be used as relationship evidence Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B. 13 Crimes Act 1900 (NSW) Evidence Act 1995 (NSW), ss 91, 92, 97, 100, 140 Limitation Act 1969 (NSW), ss 6A, 11, 14, 52 Limitation Amendment (Child Abuse) Act 2016 (NSW) Cases Cited: Allianz Australia Insurance Limited v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Carter v Walker (2010) 32 VR 1; [2010] VSCA 340 Collins v Wilcock [1984] 1 WLR 1172 Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 Fightvision Pty Limited v Onisforou (1999) 47 NSWLR 473; [1999] NSWCA 323 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gersbach v Gersbach [2018] NSWSC 1685 Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70 Hall v Fonceca [1983] WAR 309 John XXIII College v SMA [2022] ACTCA 32 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 Malec v J C Hutton Pty Limited (1990) 169 CLR 638; [1990] HCA 20 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3 Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 Payne v Parker [1976] 1 NSWLR 191 Penrith City Council v Parks [2004] NSWCA 201 R v AN (2000) 117 A Crim R 176; [2000] NSWCCA 372 R v Beserick (1993) 30 NSWLR 510 R v Leonard (2006) 67 NSWLR 545; [2006] NSWCCA 267 Ramsey v Denton [2021] NSWCA 310 Rixon v Star City Pty Limited (2001) 53 NSWLR 98; [2001] NSWCA 265 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 State of NSW v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 In the matter of HIH Insurance Limited (In Liquidation) [2015] NSWSC 790 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40 Whittaker v Child Support Registrar [2009] FCA 188 Withyman v State of NSW [2013] NSWCA 10 Texts Cited: Carolyn Sappideen and Prue Vines (eds), Fleming's The Law of Torts (10th ed, 2011, Thomson Reuters) Category: Principal judgment Parties: AA (Plaintiff) PD (Defendant) Representation: Counsel: K Andrews (Plaintiff) T Hall (Defendant) Solicitors: Carroll & O'Dea (Plaintiff) Hall Partners (Defendant) File Number(s): 2021/155673 Judgment Introduction 1. This claim arises out of an incident that is alleged to have occurred in a shower at the defendant's unit in Cronulla "in about 1972" when the plaintiff was 16 years of age. Shortly stated, the case for the plaintiff is that, whilst he was taking a shower, the defendant made an unannounced entrance into the shower recess and, for a period the plaintiff estimated was "for a few seconds", commenced to masturbate the plaintiff without his consent. The plaintiff claims – and only claims – damages for the mental harm that he says this event caused him. 2. In light of the fact that the alleged conduct arises some 50 years ago, and proceedings were only commenced by statement of claim filed on 31 May 2021, a short explanation of the plaintiff's entitlement to bring these proceedings is in order. 3. In relation to damages for personal injury founded on tort that accrue before 6 December 2002, a six-year limitation period applies running from the accrual of that cause of action: see s 14(1)(b) of the Limitation Act 1969 (NSW). Where the injured party is a minor, the limitation period is suspended until that party attains the age of 18 years: s 11(3) and 52 of the Limitation Act. Thereafter, time commences to run. 4. However, by amendments to the Limitation Act, introduced by the Limitation Amendment (Child Abuse) Act 2016 (NSW), that commenced on 17 March 2016 (and operates retrospectively), there is no limitation period applicable to proceedings where the action for damages relates to "personal injury to a person resulting from an act or omission that constitutes child abuse of the person…": s 6A(1) of the Limitation Act. No issue was raised by the defendant that the conduct alleged by the plaintiff did not constitute "child abuse" within s 6A(2) of the Limitation Act, nor, more generally, was any limitation defence raised by him in his defence. The background to this amendment to the Limitation Act, and the operation of s 6A(1) of the Limitation Act, was helpfully set out by Garling J in Gersbach v Gersbach [2018] NSWSC 1685 at [9]-[13]. Background facts 1. Subject to three contested issues of fact – in effect, two instances where (to express it neutrally) there was alleged to be inappropriate interactions between the plaintiff and defendant and the complaint sued upon by the plaintiff (that is, the event alleged to have occurred in "late 1972" in the shower of the defendant's unit) – the background facts are largely uncontroversial. 2. What follows are my findings in relation to those background facts. Thereafter, I will separately resolve the three contested issues of fact that I have described in the above paragraph. For convenience I will describe these events as the 'change room conduct'; the 'car conduct'; and the 'shower incident'. 3. The plaintiff was born on 5 September 1956 in China. He came to Australia, with his family, at the age of two. He is currently aged sixty-five. 4. The plaintiff has two siblings: his sister is two years younger than him and his brother four years younger. 5. The plaintiff grew up in the Kogarah area. He went to Kogarah State High School and, in time, secured part time work at the Kogarah Mecca Cinema ('the cinema'). The cinema was located on Station Street, Kogarah. 6. The proprietor of that cinema was the defendant. The plaintiff started working at the cinema in early 1972 when he was 15 years old. 7. When the plaintiff commenced work, he initially started as an usher. But his duties were not so limited: they extended to working at the candy bar, and he also helped clean the cinema after the matinee sessions in order to prepare it for the evening screenings. There were a number of other ushers employed, but the evidence did not identify the precise number, other than in general terms. At least one other part-time employee was a person who the plaintiff knew from school. 8. When working at the cinema, the plaintiff would wear the uniform which was worn by all the junior staff. The uniform was a white dress shirt, a crimson bow tie and blue slacks which had a maroon stripe running vertically down the side of the pants. Unlike the junior staff, the defendant did not wear a uniform although he, apparently, wore a bow tie and vest. 9. The plaintiff described getting along with the defendant "exceptionally well" and he also described being treated by the defendant as if he were "his best mate". 10. The plaintiff's parents also came to know the defendant well through the plaintiff working at the cinema. On occasions the defendant would come over to the family home and talk with them. The plaintiff described that he would be given a lift home after his evening shift – which finished around 11 pm – by the defendant. The plaintiff was driven home despite the fact that the plaintiff only lived a short distance away from the cinema – some five minutes' walk. 11. In his evidentiary statement, the plaintiff described incidents which occurred when the defendant drove him home – what I have earlier described as the 'car conduct'. The plaintiff's evidence was that the defendant would stop some distance away from the plaintiff's family home, park the car and talk to the plaintiff. The plaintiff described that this would usually be for around 10 minutes. He also described that on "a few of these times", after the car had stopped and they had been talking, the defendant touched the top of the plaintiff's right thigh with his hand. His evidence was set out, in paragraph 46 of his evidentiary statement, in the following terms: "A few of these times, [the defendant] touched the top of my right thigh with his hand. It was a light touch on the top of my leg, but it didn't feel right. It always felt like he left his hand there for as long as possible before I would move. [The defendant] was always very touchy feely and it made me feel very uncomfortable." 1. The plaintiff was cross-examined about these events. The consequence of that cross examination is that the plaintiff conceded that the instances where the defendant touched the plaintiff's leg, broadly in the manner described in paragraph 46 of his evidentiary statement, were not multiple, but confined to one instance only – that is not, as paragraph 46 sought to establish, on a "few" occasions. The defendant also cross-examined the plaintiff, in effect, to challenge that an interaction of that kind even occurred. The plaintiff disputed this, and I accept the plaintiff's evidence that this event occurred. (I later deal with its characterisation: see [56]ff, below). 2. As I have earlier mentioned, the plaintiff was required, when working at the cinema, to wear a uniform. Prior to the plaintiff commencing his shifts, he would use the change room in order to change into his work uniform. In the course of doing so, the plaintiff described how the defendant would come into the change room and talk to him whilst he was getting changed. The plaintiff said that he felt "uncomfortable" whenever the defendant came into the change room and started talking to him whilst he was changing. The plaintiff, I should add, was never fully naked when changing whilst the defendant came into the change room, but he did give evidence of taking off his shirt and pants in front of the defendant, and then putting on his work uniform whilst he was present. This is the conduct that I have described as the 'change room conduct'. 3. The plaintiff said that, when this occurred, the defendant would talk to him "about general topics such as friends or work but nothing inappropriate. He did not make any advances towards me". 4. The plaintiff was cross-examined about this evidence and it was suggested that, first, it was unnecessary to partially disrobe and change in front of the defendant and, secondly, in any event, it never occurred. The plaintiff restated that these events did, in fact, occur. I accept the plaintiff's evidence in this respect. (I later deal with the characterisation of this evidence: see [56]ff, below). 5. The evidence did not precisely disclose on how many occasions this occurred, other than that the plaintiff said it occurred "[o]ften". I am, therefore, unable to make a finding other than that it happened more than once. 6. I should emphasise some matters relating to my findings on the 'car conduct' and the 'change room conduct'. My findings on these issues are not simply based upon my acceptance of the plaintiff's evidence on these issues (which, to be clear, I have accepted), but also because (a) the defendant was not called to give evidence, nor was his absence explained – hence I have assessed the plaintiff's evidence in light of those omissions, in line with Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (which I have discussed in [47], below); and (b) none of the plaintiff's evidence about the surrounding circumstances to the conduct was challenged either during cross examination or by any other evidence adduced. For example, in relation to the 'car conduct' it was not suggested that the defendant did not drive the plaintiff home (nor was there any other evidence to cast doubt upon that fact). I have not overlooked that these events took place some time ago, and I have given careful consideration to this issue; nevertheless, I am quite satisfied that they occurred in line with the findings that I have made. 7. The defendant had a particular interest in motor vehicles, according to the plaintiff. This interest is important, for reasons which I will later explain, because it provides a backdrop to the key allegation made by the plaintiff in these proceedings. The defendant had a number of unique cars such as a Ford Mustang – Mach 1 (which was an ex-Phoenix Arizona Police Chase car), a Ford Anglia British racing Green convertible model-T Ford as well as a Ford Square Back GTHO speedway race car – a car that was used to race at Parramatta Speedway. 8. When the defendant took the speedway race car to the Parramatta Speedway, he took with him a mechanic as well as two or three ushers from the cinema. 9. The plaintiff recalled going to the speedway with the defendant "on about two occasions", and one of them was on a Friday night "about a year after [he] started working at the cinema". This would put the date of this in around early 1973, bearing in mind the plaintiff's evidence that he commenced work at the cinema in "early 1972". Despite this evidence, I am satisfied, by other evidence (in particular, paragraph 65 of his evidentiary statement), that the plaintiff went to the speedway in late 1972, and not in early 1973. I do not regard this slight variation in the dates to be material in any way (and the defendant made no submission about it) nor, specifically, does it suggest that in some way it might undercut the reliability of the plaintiff's version about what occurred following it whilst at the defendant's apartment in Cronulla. 10. The plaintiff recalled that when he went to the speedway with the defendant, that the defendant provided him (and the others) with white overalls, that had the cinema's logo on the back.. The shower incident at the defendant's unit in late 1972 1. The cause of action sued upon by the plaintiff relies upon this event as giving rise to his entitlement to damages. The plaintiff's version of what occurred at this time is as follows. 2. The plaintiff's evidence was that, one night "in about late 1972", after the plaintiff had been to the Parramatta Speedway with the defendant, they returned to the defendant's unit on Ozone Street, Cronulla. The plaintiff recalls that it was late spring or early summer – he has a specific recollection that the weather was warm at this time – and he stated that the event in question happened "not long after [his] birthday" (he was born on 5 September 1956). 3. The plaintiff described being somewhat confused – he described it as being "a bit weird" – returning to the defendant's unit, rather than being dropped home. When they arrived, the plaintiff and defendant went inside. The defendant proceeded to have a shower and after he had done so, the plaintiff says that "he got out of the shower and walked into the lounge room naked. He was rubbing himself dry with a towel". 4. The defendant then suggested to the plaintiff that he have a shower and at this time the plaintiff recalls looking at the defendant and "seeing his penis. I saw that his penis was circumcised but not erect". The plaintiff, reluctantly, went into the bathroom, took off his clothes and had a shower. The plaintiff was in the shower for one or two minutes, when the defendant came into the bathroom, still naked, and entered the shower with the plaintiff. 5. The plaintiff then, in his evidentiary statement, described what happened as follows: "[74] I was scared and just stood there. I didn't understand why [the defendant] had gotten in. I felt like I was cornered with nowhere to go. [75] [The defendant] grabbed hold of my penis inside the shower and started to masturbate me by jiggling his hand back and forth. I remember seeing that [the defendant]'s penis was not erect. [The defendant] continued to do this to me for approximately a few seconds before I said to him: 'I'm not doing any of this, I'm going.'" 1. According to the plaintiff, the defendant endeavoured to encourage him to "try what he was doing", but the plaintiff declined, got dressed and left the defendant's apartment. He walked to Cronulla train station and caught a train to Carlton. The plaintiff did not return to work at the cinema after this event. 2. The plaintiff was cross-examined about this event and it was put to him that he did not go back to the defendant's apartment, that the events in the shower did not occur and, further, that he never got the train back from Cronulla to Carlton. When challenged about them, the plaintiff adhered to his evidence. 3. It is, at this point, important to note that the plaintiff was not challenged about matters such as (a) that he, and others went to the Parramatta Speedway with, and at the request of, the defendant; and (b) that he did so on the evening in question in "late 1972". In my view, as I later explain, this is some evidence supportive of the plaintiff's evidence that the 'shower incident' occurred, as the plaintiff alleges. Resolution: the incident at the defendant's unit 1. Before commencing to resolve this contested issue of fact, it is important to make reference to the standard of proof necessary to prove causes of action that accrued many years ago involving, as they do, conduct giving rise to a breach of the criminal law. 2. In a civil proceeding, the court must find the case of a party proved if it is satisfied that it has been proved on the balance of probabilities: s 140(1) of the Evidence Act 1995 (NSW). In applying the civil standard of proof, the court can take into account the matters listed in s 140(2), one of which is "the gravity of the matters alleged" (s 140(2)(c)). These provisions are a statutory restatement of the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 (Dixon J); [1938] HCA 34 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171 (Mason CJ, Brennan, Deane and Gaudron JJ); [1992] HCA 66 ('Neat Holdings'). In Neat Holdings (at 171) it was said that "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove". Those principles apply to the present case – specifically, as it does, involving a serious allegation of non-consensual sexual contact that occurred nearly 50 years ago – and I have approached the fact-finding process on the key allegations with these principles clearly in mind. 3. Ordinarily the process to determine facts involves consideration of "contemporary materials, objectively established facts and the apparent logic of events": Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] (Gleeson CJ, Gummow and Kirby JJ). Where witnesses are recalling events from some time ago, a court will, if possible, "place primary emphasis on the objective factual surrounding material and the inherent…probabilities, together with the documentation tendered in evidence": Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 at [15] (Gleeson CJ, Gaudron, Kirby and Hayne JJ). That process has, however, limits in the present case in light of the fact that the contest between the parties relates to three events between them that were unwitnessed. 4. Nevertheless, in my view, the probabilities favour the 'shower incident' occurring, in the manner described by the plaintiff, for the following reasons: 1. First, because the plaintiff gave unchallenged evidence, relating to observations he made about the location of the defendant's unit as well as a description of the exterior and interior of it, and there is no suggestion that the plaintiff made these observations (and thus acquired this knowledge) on any other occasion other than the night in question. Further, many of the events that occurred before it – such as going to the Parramatta Speedway – were not challenged by cross examination or evidence, and which I consider to be corroborative of the plaintiff's version of events. 2. Secondly, because the plaintiff attending the Police Station in 2009 to report the incident is consistent with its occurrence. 3. Thirdly, because the defendant was not called to give evidence, nor was his absence explained. 4. Fourthly, by reason of the admissions made by the defendant in the current proceedings in connection with criminal charges that arose in consequence of the 'shower incident'. 5. Finally, because the 'car conduct' and, to a lesser extent, the 'change room conduct', is relationship evidence and thus is some evidence that renders the plaintiff's account more plausible. 1. I will expand upon these reasons in what follows but, before undertaking separate consideration of these elements which, in my view, lend support for the finding that I have made about the 'shower incident', I should address, more particularly, the related findings that I make based upon the plaintiff's evidence. They are as follows. I accept that after the plaintiff went with the defendant to the Parramatta Speedway in "late 1972"; that the plaintiff returned to the defendant's unit afterwards; that the defendant's unit was located on Ozone Street, Cronulla; that shortly after they arrived at the unit, the defendant showered and, having done so, walked naked into the lounge room – where the plaintiff was. Put simply, I accept the evidence that the plaintiff has given about the entire sequence of events that occurred on the evening in question. 2. I turn now to consider why I have found that the 'shower incident' occurred. The evidence about the location of the units and some features of it 1. The plaintiff gave evidence about the defendant's unit in three broad respects: first, he gave evidence about its location: he said it was on Ozone Street, Cronulla and that it "was overlooking the rockpool"; secondly, the plaintiff gave a description about the exterior of the unit complex: he said it was "made up of red brick units"; thirdly, the plaintiff gave evidence about the interior of the unit, and its configuration: he said that the "bathroom of his unit had square shaped, pink tiles and a sliding plastic curtain. When you walked into the unit the bathroom was located opposite to the front door. The unit had a balcony". 2. None of this evidence was challenged either in cross examination or by other evidence tendered in the proceedings. I accept it. No other explanation was advanced – either through cross-examination or final submissions – to cast any doubt upon the accuracy of what the plaintiff observed in the ways I have described. For example, it was not suggested that the plaintiff had been to the defendant's unit on an earlier occasion and that his ability to give the detailed evidence that he did was acquired from such earlier visit rather than from what the plaintiff observed when he went to the defendant's unit on the night in question. 3. The 'shower incident' occurred after the plaintiff and defendant attended the Parramatta Speedway. As I noted in [33], above, the plaintiff was not challenged, when cross examined, about matters such as: (a) the defendant's interest in cars and that he had a racing car of a particular kind; (b) that the defendant took staff to watch him race, and assist him doing so; (c) that the plaintiff was one such staff member; and (d) that the plaintiff and defendant went to the Parramatta Speedway in "late 1972". Nor, I should add, was there other evidence that tended to cast some doubt on what the plaintiff said across these issues. That the evidence was left as I have described it is, in my view, supportive of the 'shower incident' occurring by establishing the surrounding circumstances leading up to it. The plaintiff's attendance on Police in 2009 1. In around September 2009, the plaintiff saw an article about the defendant in the local newspaper – the St George Leader – about him being arrested and charged. This led the plaintiff to make contact with Detective Senior Constable Lee from Hurstville Police. Having done so, the plaintiff, with the assistance of Detective Lee, commenced preparing a statement in relation to the 'shower incident', but he did not complete that statement because he "found it too stressful" and "difficult to continue" due to the memories it brought back. 2. The plaintiff later completed this statement with Police which he signed on 2 October 2018. That statement sets out the plaintiff's account in relation to the 'shower incident'. The Police statement, it should be noted, is in very similar terms to the plaintiff's evidentiary statement dated 21 April 2022. 3. In my view, the plaintiff attendance upon Police in 2009 provides some support for the plaintiff's evidence about the 'shower incident', in that it demonstrates that the plaintiff, of his own volition, initiated contact with Police albeit that reading the newspaper article prompted him to do so. In this respect I note that the plaintiff was not cross-examined to the effect that, by way of example, he made contact with police for an improper or extraneous reason. I accept that the plaintiff reported his interactions with the defendant for a legitimate reason – that is, to start the process of formalising a complaint against the defendant in relation to the 'shower incident'. 4. The fact that the plaintiff did not complete the statement does not, in my view, dictate a different outcome. The plaintiff said in his Police statement, as he did in his evidentiary statement, that completing it, in effect, made him relive the events causing him distress. I accept that as being an entirely justifiable reason for him not completing this statement and not pursuing the complaint further at that time. To the extent that the defendant, when cross-examining the plaintiff, sought to establish that there was no "overwhelming element of stress" upon him that might have precluded him from completing the statement at that time – a matter which the plaintiff denied – I do not accept that that was so. I find it did cause the plaintiff some stress, and that prompted him to cease completing it The failure to call the defendant or explain his absence 1. The defendant did not give evidence nor was any evidence adduced to explain his absence. In those circumstances it is open to draw an inference of the kind referred to in Jones v Dunkel – namely, that the evidence of the defendant would not have assisted him on the key issues in dispute. That does not, of course, mean that I simply accept the plaintiff's evidence in the absence of contrary evidence from the defendant himself; rather it means that "the direct evidence of the party with the onus of proof can be more readily accepted, and inferences in his favour may be more confidently drawn": Payne v Parker [1976] 1 NSWLR 191 at 201 (Glass JA). 2. There is no question that the preconditions to the engagement of the principle are present: it is obvious that, on the facts of this case and bearing in mind that he is a party to proceedings, he would be giving evidence in his own case; his evidence would be directed to particular matters – not confined to the 'shower incident', but also (at a minimum) to those issues of fact surrounding that event (see [38] and [40], above) – and would "elucidate them" or be "able to put a true complexion on the facts" (see Payne v Parker at 201E and 202D (Glass JA)); and his absence is unexplained. 3. As to this last matter, the defendant, during final submissions, sought to argue that, in effect, calling the defendant to contest the version of the plaintiff would have been of questionable weight and, therefore, utility. I do not accept that submission. In particular, I do not accept that it means that the defendant would not have been placed to give evidence across the range of issues that I have identified, nor do I accept that it provides some explanation for why the defendant did not give evidence. 4. Thus, although I am not obliged to draw an inference of the kind referred to in Jones v Dunkel, I propose to do so in this case not only in relation to the shower incident, but in connection with the 'change room conduct' and the 'car conduct'. The criminal proceedings arising from the conduct and the admissions in the current ones 1. A somewhat unusual feature of this case is that, despite the defendant conceding that he was charged with, and convicted of, an offence arising out of the conduct that is alleged to have occurred in the shower of the defendant's premises in late 1972, there is no evidence of the actual charge laid against him resulting from this conduct, nor any evidence what sentence was imposed following the conviction. During submissions, the plaintiff raised s 92 of the Evidence Act. In the circumstances of this case, reliance upon s 92(2) of the Evidence Act (which provides an exception to s 91(1)), to receive evidence of the conviction, is limited. That is because, although the defendant is "a party", there is no evidence of the offence to which the conviction relates, as I have mentioned. Thus, it does not advance the plaintiff's position beyond that which was in fact admitted by the defendant – namely, that he was convicted of an offence relating to the 'shower incident'. 2. I turn next to consider the admissions made by the defendant in the current proceedings. Those matters were: first, that the offence to which the defendant was charged was in relation to the facts contained within paragraph 3(iv) of the statement of claim; secondly, that the defendant entered a plea of guilty to that charge; and, thirdly, that he was convicted following entry of that plea of guilty. 3. A plea of guilty is an admission of all the elements of the offence: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [4] (Gleeson CJ, Gaudron, Hayne and Callinan JJ) ('Olbrich'). 4. Here, absent evidence as to the nature of the charge to which the defendant entered a plea of guilty, there is self-evident difficulty in using that plea in the manner discussed in Olbrich. There are no elements which it can be said have been admitted in the absence of an identified offence to which the defendant pleaded guilty and was convicted. 5. Although, as I have said, the absence of evidence identifying the nature of the charge precludes clear identification of any admissions as to the elements of that offence, in the sense described in Olbrich, in my view the admissions on the pleadings made by the defendant, and those to which reference has been made in paragraph [52], above, are some evidence that the defendant has admitted that underlying conduct. In my view, the admission that the defendant pleaded guilty to a charge laid against him based on the 'shower incident', and was later convicted in respect of that charge, are admissible in these proceedings as admissions of the offence by the defendant: In the matter of HIH Insurance Limited (In Liquidation) [2015] NSWSC 790 at [46]-[51] (Brereton J). It follows that I do not accept the defendant's submission that, in effect, that which the defendant admitted is neutral. The earlier incidents 1. Although the principal issue is whether the 'shower incident' occurred (or not), the plaintiff gave evidence of two earlier interactions with the defendant: namely, what I have described as 'change room conduct' and the 'car conduct'. 2. The issue is how this evidence may be used when considering whether the 'shower incident' occurred. In this respect it should be noted that no tendency notice was provided by the plaintiff (s 97(1)(a) of the Evidence Act), nor was there any application by the plaintiff to dispense with that requirement under s 100(a) of the Evidence Act. In those circumstances it is not, in my view, permissible for this evidence to be used for a tendency purpose: R v AN (2000) 117 A Crim R 176; [2000] NSWCCA 372 at [62] (Kirby J). This is particularly where, as here, the plaintiff did not make any submissions about how this evidence should be used and did not seek to use the evidence for a tendency purpose. 3. In my view this evidence – specifically the 'car conduct' event – is relationship evidence. That is, it can be used as some evidence that tends to remove the implausibility that might otherwise attach to the plaintiff's account of the 'shower incident', if the event was thought to be an isolated one; and, further, it can be used as some evidence that the defendant was, at least, attracted to the plaintiff and had a motive to act as he did: R v Leonard (2006) 67 NSWLR 545; [2006] NSWCCA 267 at [49] – [52] (Hodgson JA); see also R v Beserick (1993) 30 NSWLR 510 at 515 (Hunt CJ at CL, Finlay and Levine JJ agreeing). 4. In my view the relationship evidence – particularly the 'car conduct'– renders the plaintiff's version more believable and I have taken this evidence into account in my assessment of where the probabilities lie. In relation to the 'change room conduct', it has some probative force, albeit less than the evidence about the 'car conduct', and I have taken this into account also. The defendant's submissions 1. The defendant raised a number of matters which, so it was argued, supported the conclusion that the plaintiff had failed to establish, on balance, the likelihood of the 'shower incident' occurring and, thus, his cause of action against the defendant. 2. It was argued, in support of this submission, that the standard of proof required was not met because the allegations were not proven "with a degree of certainty". I am, of course, mindful of the provisions of s 140 of the Evidence Act (see [35], above), but I do not accept the submission that I should find that the plaintiff has not satisfied me that the 'shower incident' occurred, for the reasons that I have given. 3. In aid of this submission, the defendant also made reference to the cross examination of the plaintiff relating to his siblings. There, the defendant cross-examined the plaintiff to establish, in effect, that during his upbringing, he had a close relationship with his siblings which continued to this day. I am satisfied that that is so. The defendant sought to argue, based upon these concessions, that by reason of that close connection – it was essentially put that they were in a position to observe his "pattern of behaviour at home" – and the failure to call them as witnesses, or to explain their absence from doing so, warrants an inference of the kind referred to in Jones v Dunkel being drawn, with the consequence that I would be reluctant to accept the plaintiff's evidence. 4. I do not accept that submission nor, to be clear, the series of assumptions within it – including, that the plaintiff manifested observable behaviour consequent upon the 'shower incident' in late 1972; that, even if he did, that, reasonably, this should have been observed by his younger siblings in 1972 (when they were 14 and 12 respectively) or thereafter. 5. A related submission was also made by the defendant, namely that persons who worked with the plaintiff at the defendant's cinema – identified as Ross Cunningham, Robert Lopez and Peter McColl – were not called nor was any explanation proffered as to why they were not. I do not accept this submission because it is clear, on the evidence, that none of them were witnesses to any of the events that occurred; that is, none of them witnessed (or were alleged to have witnessed) the 'change room conduct', the 'car conduct' or the 'shower incident'. They were all particular events that only involved the plaintiff and the defendant. I therefore do not consider that they were able to say anything about these events and hence no adverse inference is available to be drawn from their absence. In any event, I am not prepared to find that they were more naturally "in the plaintiff's camp" such that it would be expected that the plaintiff, rather than the defendant, would call such witnesses. Liability: the plaintiff's causes of action 1. The plaintiff sues the defendant for damages – as advanced during final submissions – relying upon three causes of action: assault, battery and trespass to person. These causes of action were identified in paragraph 2(iii) of the Plaintiff's Memorandum of Issues and Facts dated 20 July 2022. Two matters should here be noted. The first is that, although the causes of action do not align to the causes of action identified in the statement of claim, the defendant did not object to the plaintiff advancing these causes of action. The second is that the defendant did not argue that, if the finding was that the 'shower incident' occurred as the plaintiff alleged, these causes of action would not be made out. No specific submissions were made by the plaintiff about these causes of action, possibly in light of the stance by the defendant. 2. Nevertheless, I propose to address, albeit briefly in light of the defendant's concession and the way the case was conducted by both parties, whether these causes of action are made out (and, in relation to the claim in trespass, whether that cause of action has a separate existence to assault and battery). 3. I will first address the claim in trespass. As to the availability of a separate cause of action in trespass – that is, distinct from assault and battery – there is a difficulty: the notion that trespass remains as an independent tort has fallen away and developed into "the nominate torts of assault, battery and false imprisonment": Carolyn Sappideen and Prue Vines (eds), Fleming's The Law of Torts (10th ed, 2011, Thomson Reuters) at 25 ('Fleming's'); Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [20] (Leeming JA, Beazley P and Ward JA agreeing). To those references can be added the following, each of which is to the same effect: Whittaker v Child Support Registrar [2009] FCA 188 at [34] and [37] (Lindgren J) and Carter v Walker (2010) 32 VR 1; [2010] VSCA 340 at [215] (Buchanan, Ashley and Weinberg JJA).The plaintiff did not cite any authority to support the existence of this cause of action separate from assault and battery (or to suggest that this statement of principle does not correctly reflect current tort law taxonomy), and I proceed on the basis that the relevant claims are in assault and battery. Assault 1. An assault "consists in intentionally creating in another person an apprehension of imminent harmful or offensive conduct": see Fleming's at 34, cited approvingly in Rixon v Star City Pty Limited (2001) 53 NSWLR 98; [2001] NSWCA 265 at [57] (Sheller JA, Priestley and Heydon JJA agreeing); Croucher v Cachia (at [99] (Leeming JA, Beazley P and Ward JA agreeing). That is, there must be an intentional act by the defendant. An action for assault also requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact: Hall v Fonceca [1983] WAR 309 at 314 (Smith and Kennedy JJ); Rixon v Star City Pty Limited at [58] (Sheller JA, Priestley and Heydon JJA agreeing). 2. In my view, these elements are established. That is because the defendant – whilst still naked – entered into the shower with the plaintiff. When he did so, the plaintiff's evidence was that he "was scared and just stood there. I didn't understand why [the defendant] had gotten in. I felt like I was cornered with nowhere to go". I accept that evidence, which establishes: (a) the intentional and voluntary act of the defendant; and (b) the plaintiff reasonably apprehending imminent harmful and offensive conduct. No other sensible inference can be drawn, in my view, once it is recalled that the defendant had already showered by this time. 3. I am satisfied, in line with the concession made by the defendant, that this cause of action has been made out by the plaintiff. Battery 1. Battery involves the actual infliction of unlawful force on another: Boughey v The Queen (1986) 161 CLR 10 at 25 (Mason, Wilson and Deane JJ); [1986] HCA 29. The most recent, commonly cited, exposition of the tort is that of Leeming JA (Beazley P and Ward JA agreeing) in Croucher v Cachia at [21] where his Honour said: "A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was 'utterly without fault'". The touching of another person, however slight, may amount to a battery: Collins v Wilcock [1984] 1 WLR 1172 at 1177-1178 (Goff LJ). Like assault, battery is an intentional wrong such that "the offensive contact must have been desired (purposive) or known to be substantially certain to result": see Fleming's at 34. 2. In my view, consistent with the defendant's concession, this cause of action is clearly made out on the findings that I have made: the defendant plainly made contact with the plaintiff's penis, and it is equally plain that he intended to make that contact. To be clear, there is no suggestion that the conduct of the defendant could be characterised as "utterly without fault"– and therefore in some way excusable, and I do not find that it was. Damages 1. Before I outline the claim advanced by the plaintiff, and outline my reasons resolving it, the following should be noted. 2. The plaintiff contended, and the defendant expressly accepted, that the provisions of Part 2 of the Civil Liability Act 2002 (NSW) ('the CLA') did not apply to any assessment of damages if I accepted the plaintiff's version of what occurred in late 1972. That was because, on the plaintiff's argument, the defendant's conduct was properly categorised as "an intentional act that is done with intent to cause injury… or that is sexual assault or other sexual misconduct" within s 3B(1)(a) of the CLA. No submission was put by the plaintiff about how the relevant conduct should be characterised for the purposes of this section. It seems to me likely that the conduct sued upon – the 'shower incident' – would most likely be sexual misconduct in the sense that it was improper and non-consensual sexual touching: Withyman v State of NSW [2013] NSWCA 10 at [51]-[52] (Allsop P, Meagher and Ward JJA agreeing). On the other hand, whether the conduct amounts to "sexual assault" is more difficult if, say, the phrase is to be construed in line with the classification of sexual offences in the Part 3, Division 10 of the Crimes Act 1900 (NSW). In the absence of argument, I will not address this constructional issue further. 3. In light of the concession made, and my view that the 'shower incident' is sexual misconduct, I proceed on the basis that the plaintiff's claim for damages falls to be assessed at common law, and not pursuant to Part 2 of the CLA. 4. The plaintiff seeks general damages, damages for loss of earning capacity (for the past and the future) and consequent loss of superannuation entitlements (for the past and the future), as well as damages for future medical and out-of-pocket expenses. The plaintiff also seeks an award of $20,000 for aggravated damages. The nature and extent of the plaintiff's injuries 1. The plaintiff claims, in consequence of the 'shower incident', to have developed psychiatric injury: specifically, post-traumatic stress disorder ('PTSD'), alcohol use disorder, cannabis use disorder and trauma related disorder. He does not claim a discrete amount of damages for the trespass – which is an action on the case – nor does he claim any amount of damages for the physical interference that arose in the 'shower incident'. 2. In support of findings that the plaintiff has developed those conditions, and that they are consequent upon that which occurred in the 'shower incident', the plaintiff relies upon the evidence from Dr Nigel Prior, consultant psychiatrist. The defendant, I should add, did not tender any expert psychological or psychiatric expert evidence. 3. Dr Prior was qualified by the plaintiff for the purposes of the present proceedings and his report, dated 30 August 2021, arose out of a consultation that he had with the plaintiff on 24 August 2021 as well as his consideration of background material to which reference is made in his report. That material was tendered, but the defendant has agreed that the summary contained within Dr Prior's report is an accurate summary of the underlying material referred to by Dr Prior. 4. The plaintiff's claim that he developed a PTSD is unsupported by Dr Prior, and I do not accept that the plaintiff has, or had, that condition. In so finding, three matters should be noted. First, Dr Prior excluded that diagnosis – he indicated that the plaintiff did "not have the full criteria for a post-traumatic stress disorder but has an adjustment like disorder", which I take to mean the alternative diagnosis that Dr Prior in fact supported – namely, Other Specified Trauma and Stressor Related Disorder (discussed further, below). Secondly, to the extent that, within a summary of the medical material brief to Dr Prior there is a reference to a General Practitioner ('GP') diagnosing the plaintiff as having a PTSD, I do not accept that evidence – at a minimum because I do not have any explanation or understanding of how or why that diagnosis was reached and, moreover, no evidence that links this to the conduct which is the subject of this claim. Thirdly, I note that, during final submissions, the plaintiff did not advance a claim that he had sustained a PTSD in consequence of the 'shower incident'. 5. In relation to the remaining injuries, the key opinions expressed by Dr Prior or matters of history which were provided by the plaintiff to him (which, to be clear, were admitted not simply as evidence of what the plaintiff told Dr Prior, but as evidence of the fact) were as follows: 1. Whilst at school, the plaintiff saw a female counsellor, and she encouraged him to do a meditation course which he did over a weekend According to the plaintiff, his participation in this course was helpful in improving his anxiety levels and sleep. Further the plaintiff reported that the "depression gradually improved and…the incident did not play on his mind as much". 2. Since around the age of 18, the plaintiff has been on and off antidepressants and diazepam (a sedative). The plaintiff was trialled on Aropax, at a time, which the plaintiff reported was a consequence of "having low mood secondary to being unemployed… He was also trialled on Prozac in his 30s following relationship difficulties, again got side effects and ceased this. He was last on antidepressants about five years ago". 3. That a Mini – Mental State examination, performed on 19 July 2013, "indicated no significant cognitive impairment". 4. The plaintiff was not currently seeing a psychiatrist or psychologist for treatment. Prior to the consultation with Dr Prior, the plaintiff had seen a psychologist through Lifeline approximately four years before. That treatment was on a weekly basis for about three months, and stopped once the psychologist ceased work. The plaintiff's explanation for not resuming treatment with another psychologist was recorded as due to the plaintiff not wanting "to tell his story all over again". 5. The plaintiff underwent a mental state examination when he consulted Dr Prior, and Dr Prior reported that the plaintiff "was somewhat tearful discussing the circumstances of his abuse". Dr Prior also recorded that the plaintiff "denies any current anxiety, depression or panic attacks. He reports good sleep, appetite, energy, concentration and memory but reports decreased libido secondary to his physical health problems". Those "physical health problems", were identified by Dr Prior as "erectile dysfunction secondary to his prostatic hypertrophy". Further, during that examination, the plaintiff reported "occasional nightmares particularly after talking about his past abuse. Although he denies any flashbacks, he does have memories of the past abuse which are triggered by specific reminders…". 6. In terms of diagnosis, Dr Prior, using the Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition), "shows evidence of" three conditions: "1. Alcohol Use Disorder, mild. 2. Other Specified Trauma and Stressor Related Disorder. 3. Cannabis Use Disorder (in remission)". In furtherance of this, when dealing specifically with the "severity" of these conditions, Dr Prior expressed the following opinion: "The severity of his Substance Use Disorder involving alcohol is mild. The Substance Use Disorder regarding cannabis is in remission. The Other Specified Trauma and Stressor Related Disorder is mild and intermittent." 1. Dr Prior considered that the date of onset for each of these conditions was around the age of 17 or 18, and that the alleged abuse "has caused all of the conditions diagnosed. These conditions had their onset after the alleged abuse". 2. Dr Prior considered that the plaintiff would benefit from further treatment – specifically, that the plaintiff would benefit from psychological assistance (involving matters such as cognitive behavioural psychotherapy, trauma-focused psychotherapy and the like), as well as assistance, in connection with his alcohol use, aimed at reducing the intake, and possibly ceasing it. 3. As to prognosis, Dr Prior considered that it was "generally good". 1. I accept, in line with the opinion expressed by Dr Prior referred to in [81(6)], above, that the plaintiff has, or had, as the case may be, the three conditions he diagnosed as well as his opinion, broadly, on the severity of those conditions. 2. In relation to the cannabis use disorder (in remission), the evidence establishes that the plaintiff's use of cannabis ceased in 1996. The plaintiff's evidentiary statement did not address, at all, his use of cannabis – except the reference that, after seeing a psychologist some years after the 'shower incident', the plaintiff "had started to drink and smoke dope". His supplementary evidentiary statement did not address this issue. He was cross-examined, in a confined way, on behalf of the defendant, in relation to his cannabis use. When giving that evidence, the plaintiff did suggest that his use of cannabis was a consequence of the 'shower incident' in that he used cannabis "as a coping mechanism". 3. In relation to this evidence, I confess to having some reservations about accepting the plaintiff's evidence on this topic – to the effect that the use of cannabis was principally due to the 'shower incident'. My assessment of the plaintiff, when he gave this evidence, was that he seemed overly emphatic in saying that he used cannabis "as a coping mechanism", and I was not convinced that that was so. I am not, in making this finding, suggesting that this reflects adversely upon the plaintiff's credit overall. Rather, I am simply finding that, on this confined issue, I consider that the plaintiff's cannabis use was only incidentally related to the 'shower incident' and more likely the product of experimentation and the plaintiff's youth. Nevertheless, I have accepted a relationship between the plaintiff's cannabis use and the 'shower incident' by my earlier finding that the plaintiff had a Cannabis Use Disorder (in remission). 4. There is some further, limited, evidence about the plaintiff's cannabis use in Dr Prior's report. There it was recorded that the plaintiff "began smoking cannabis at the age of 18 through to his late 30s. He smoked on a daily basis up to three joints a day. He ceased smoking in 1996 at the same time that he ceased smoking cigarettes". 5. Otherwise, the evidence about the plaintiff's use of cannabis was limited in the way that I have described. Following from this, there is no evidence about how the use of cannabis impacted the plaintiff and, therefore, sounded in damages. I therefore do not accept that this condition was, at any time, anything other than mild and, I find that, since 1996, it has been in remission. It should be emphasised that that was the evidence of Dr Prior, which I accept on this issue. Further, I do not accept that this condition will recur, particularly in light of Dr Prior's favourable prognosis, that it has been in remission for some 26 years and, in particular, because there was no specific evidence directed to the likelihood of that outcome. 6. In relation to the Alcohol Use Disorder, I also consider (and find), in line with what Dr Prior expressed in his report (to which reference has been made) and which he later confirmed when giving evidence, that this disorder was similarly mild. 7. The plaintiff's evidence on this aspect of his claim is limited. In his evidentiary statement, it was confined to the following: 1. after seeing a psychologist some years after the 'shower incident', he "had started to drink and smoke dope"; and 2. following further contact with Police in late 2018, the plaintiff noticed that he "was drinking more than usual since the phone call" from Police encouraging him to complete his Police statement (that he commenced in 2009) into the conduct that occurred in late 1972. 1. The plaintiff told Dr Prior that he commenced drinking alcohol at around "17 or 18 in a binge pattern" and that he did so "to numb the emotional pain"; that he had been drinking most of his adult life – albeit he had a period of abstinence of six years in his mid-40s when he "got into martial arts and became very fit"; that he continues to drink albeit that he "recognises he drinks to excess, and his GP is concerned about his alcohol intake". 2. Notwithstanding the matters recorded in Dr Prior's report that I have identified above, I remain unpersuaded that the plaintiff's alcohol consumption bears anything other than the characterisation placed upon it by Dr Prior – namely, that it was, and is, mild. And, further, I am not persuaded that the plaintiff's alcohol consumption has had any significant impact upon his well-being. For example, there is no evidence about the specifics of how, and if so in what way, the alcohol consumption has particularly interfered with the plaintiff's day to day functioning or his interaction with others around him, including his immediate family. To the extent that Dr Prior might be taken to suggest that the plaintiff's consumption of alcohol had a negative impact on his overall functioning, I do not accept that that is so other than in a mild way and, as I have said, without any significant impact upon him. 3. To be clear, although I have allowed an amount for future treatment expenses to cover the plaintiff having 10 treatment sessions over a 12 month period aimed at assisting him with his reduction of alcohol intake (see [123]ff, below), that allowance sits consistently with my findings on this issue and my acceptance that, in line with what Dr Prior has said, this mild condition could usefully be treated to improve his overall emotional well-being. As Dr Prior noted, the plaintiff's "prognosis would be improved if he was to cease drinking or even reduce [it] significantly" and that his mental state may deteriorate if the plaintiff continues to drink at a "hazardous but non-dependent level". 4. In relation to the Other Specified Trauma and Stressor Related Disorder diagnosed by Dr Prior, that condition is, I find, not only mild but intermittent. 5. The plaintiff's evidence on this issue – specifically, in connection with his day-to-day functioning – was not addressed (at least in detail) in his evidentiary statement, nor in his supplementary one. To the extent that it was referred to in his evidentiary statement, it was largely confined to the period following him completing his statement to Police in 2018. 6. Dr Prior did, however, take a detailed history about the plaintiff's current emotional status. Although the plaintiff became tearful. during his consultation with Dr Prior, when "discussing the circumstances of his abuse", importantly the plaintiff denied "any current anxiety, depression or panic attacks. He reports good sleep, appetite, energy, concentration and memory but reports decreased libido secondary to his physical health problems". As I earlier mentioned, those "physical health problems", were identified by Dr Prior as "erectile dysfunction secondary to his prostatic hypertrophy". Further, during that examination, the plaintiff reported "occasional nightmares particularly after talking about his past abuse. Although he denies any flashbacks, he does have memories of the past abuse which are triggered by specific reminders…". 7. I accept that what the plaintiff reported to Dr Prior reasonably represents his current mental status and functioning. Further, I also accept Dr Prior's opinion that the plaintiff had "intermittent problems"– which I take to be a reference to occasions when he is "triggered by specific reminders" – but that otherwise that disorder was "mild and currently not impacting significantly". 8. I do not think that the position is otherwise for the short or long-term past. 9. I accept, when contacted by Police in 2018 to complete his statement, that that contact, and what was required of him, would certainly have "triggered" some symptoms. This is what the plaintiff addressed in his evidentiary statement: that after being contacted by Police he was "not able to sleep properly. I started having increased negative thoughts. It had taken me years to put this all far back in my mind". The plaintiff also described, at this time, "drinking more than usual" as well as becoming "overly protective of all my kids". 10. I appreciate that the plaintiff described symptoms following the 'shower incident', and I accept that there were more symptoms at that time including feeling "dirty" that his penis had been touched by the defendant, and feelings of shame and anguish (plaintiff's evidentiary statement, [79], [83], [90]). I make due allowance for these feelings occasioned following the 'shower incident' in my assessment of general damages. I accept that, at around this time, the plaintiff also experienced some nightmares, intrusive memories and hypervigilance, as Dr Prior has noted. 11. For the period immediately following the 'shower incident', Dr Prior was asked to specifically identify the "severity" of the conditions so identified – which, in relation to the Other Specified Trauma and Stressor Related Disorder – he described as: "mild and intermittent". That is, Dr Prior did not consider that the plaintiff's symptoms, and the Other Specified Trauma and Stressor Related Disorder diagnosed by him, were more severe in that time period. I accept this evidence and find that for the entire period following the 'shower incident' to the present time, the plaintiff's Other Specified Trauma and Stressor Related Disorder has been intermittent and mild. The impact of that condition on his domestic relations (including those with his former wives) has been similarly mild. General damages 1. In light of the findings that I have made, I assess general damages at $100,000. 2. The plaintiff is entitled to interest on this amount in accordance with MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663-664 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1991] HCA 3; Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54 at 58-59 (Samuels AP, Mahoney JA and Hunt AJA). 3. For purposes of calculating interest, I allocate 60% of those damages to the past (which takes into account that the events happened some 50 years ago, and that there is an assumed life expectancy of around 20 years), and the reduction in rate is to reflect the fact that I am allowing the interest over the entire period of the claim, an approach that the plaintiff was content to adopt. 4. The calculation, therefore, is: 2% x $60,000 x 50 = $60,000.00. Loss of earning capacity 1. In order to recover damages for loss of earning capacity, what must be established is a diminution in earning capacity which is or may be productive of a loss: Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5. The plaintiff claims both past and future economic loss. I will deal with each claim, in order. Past economic loss 1. The plaintiff claims past economic loss in the sum of $200,000, to be assessed as a global sum, rather than by a more conventional approach – that is, by undertaking a mathematical comparison between the economic benefits derived from the plaintiff exercising his (injured) earning capacity, and the economic benefits that would have been derived, but for the defendant's conduct and the injuries suffered in consequence. Generally assessments by reference to a "buffer" are encountered in situations where the court finds there is a risk that, in consequence of the injury, a plaintiff may lose otherwise secure employment or because there is considerable residual earning capacity: Penrith City Council v Parks [2004] NSWCA 201 at [3]-[5] (Giles JA, Cripps AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [2] (Mason P) and [33] (Hodgson JA, McColl JA agreeing); Allianz Australia Insurance Limited v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [24] (Basten JA, McColl and Macfarlan JJA agreeing). (Although these cases were concerned with assessments under the CLA, the issue raised was whether an assessment by way of buffer was otherwise precluded by s 13 of the CLA). 2. Notwithstanding that the assessment of loss of earning capacity by way of "buffer" is typically encountered in assessments of that loss into the future, there is "no principle which prohibits the awarding of a buffer for past economic loss in an appropriate case": Ramsey v Denton [2021] NSWCA 310 at [61] and [112] (Cavanagh J, Meagher JA and Simpson AJA agreeing); John XXIII College v SMA [2022] ACTCA 32 at [189] (Murrell CJ, Loukas-Karlsson J and McWilliam AJ). The question here is whether or not this is "an appropriate case" for that approach and, if so, the quantification of any lump sum awarded. 3. The case for the plaintiff involved the following steps: first, the plaintiff had intended to study medicine, or undertake university degrees; secondly, he did not secure entry into university to study medicine and, to the extent that he secured entrance to study for a science degree, he withdrew from that course; thirdly, the plaintiff has "regularly altered his employment"; and, fourthly, these matters are reflective of loss of earning capacity attributable to his psychiatric injury suffered in consequence of the 'shower incident'. 4. Dr Prior specifically addressed the question of the impact of the events on what he described, during his oral evidence, as the plaintiff's "trajectory". In his report dated 30 August 2021, Dr Prior expressed the following opinions in relation to the effect on education or employment prospects, as follows: 1. It "is likely that [the plaintiff's] ability to perform as well as he could at high school was impacted negatively by the incident [the] subject of this claim. I consider that it is likely that his ability to focus and attend was reduced and consequently impeded his ability to achieve at a higher level in his HSC". 2. Dr Prior considered "that consequently his employment prospects have been mildly impacted by the incident", an opinion that he adhered to when giving evidence. 3. The plaintiff "may have been able to achieve at a higher level if his educational trajectory had not been impacted to a mild degree by his difficulties with anxiety, depression and reduced concentration post the alleged abuse". 1. Dr Prior, it should be noted, was not asked to express an opinion on whether the frequent alteration of the plaintiff's employment was attributable to the mild impact of the incident and in my view, at least implicitly, does not accept the proposition that it did. That is because Dr Prior expressed the opinion, that I had earlier mentioned, that the plaintiff "has been able to work full-time and successfully". I accept his evidence and, further, find that the regular alteration in the plaintiff's employment is unrelated to the Other Specified Trauma and Stressor Related Disorder and the mild and intermittent nature of it. 2. The evidence upon which to base findings to support the claim advanced by the plaintiff are somewhat meagre. 3. Usually, in a claim of this kind, evidence would be adduced to cover matters such as the results he achieved at school prior to "late 1972", the academic or professional success of others in his immediate family, the results he achieved at school after "late 1972", the results of his attempts at the HSC, the results of his attempt at the science degree and matters of that kind. I am not, in listing these matters, intending to be exhaustive. No attempt was made in this case to adduce evidence directed to any of these matters – other than in general terms. In saying that I appreciate that, due to the effluxion of time, there may have been difficulties in securing some, or possibly all, of these records – but if that were the situation, then presumably there would have been evidence establishing that that were so and, in any event, the plaintiff could himself have given evidence about them. The plaintiff's evidentiary statement, and supplementary one, do not address loss of earning capacity at all. 4. I have not overlooked the limited references in Dr Prior's report to the plaintiff reporting that he was "struggling" at school following the incident, nor to the self-report that although performing highly in science and maths in the first three years of high school, subsequent to that his grades deteriorated. But I am not prepared to act upon this evidence which is expressed in general terms. 5. Although this claim was not expressed in these terms during submissions, in my view, this is claim is properly understood as a 'loss of opportunity claim', and the Court needs to approach this task by evaluating that chance: Malec v J C Hutton Pty Limited (1990) 169 CLR 638 at 645 (Deane, Gaudron and McHugh JJ); [1990] HCA 20 ('Malec'); Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 349-350 (Mason CJ, Dawson, Toohey and Gaudron JJ); [1994] HCA 4 ('Sellars'); Fightvision Pty Limited v Onisforou (1999) 47 NSWLR 473; [1999] NSWCA 323 at [138]-[143] (Sheller, Stein and Giles JJA). I do not feel I can find that any alleged chance was either speculative (Malec at 643 (Deane, Gaudron and McHugh JJ)) or negligible (Sellars at 355 (Mason CJ, Dawson, Toohey and Gaudron JJ)), or both, based upon the opinion from Dr Prior that there was an impact upon the plaintiff, albeit a mild one. 6. Nevertheless I feel constrained in what I can reasonably and proportionately award bearing in mind the limitations in the evidence that I have identified and I do not consider that the decision in State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 (cited to support the proposition that limited material, of itself, does not preclude an award of damages for loss of earning capacity), relied upon by the plaintiff, dictates a contrary conclusion. 7. In my opinion, having regard to the matters that I have referred to above, an award of $30,000 adequately covers the loss of chance that I have identified. 8. Interest on this amount, applying the rate (2.5%) and over the period claimed (20 years) by the plaintiff, is $15,000.00. Future economic loss 1. The plaintiff claims the sum of $50,000 for future loss of earning capacity. 2. I do not accept that, for the future, there is any diminution in the plaintiff's earning capacity or, if there is one, it is likely to be productive of loss, for the following reasons: 1. The opinion of Dr Prior, which I have accepted, was that the impact of his conditions on the plaintiff's employment prospects was mild and that he had "been able to work full-time and successfully". 2. Dr Prior considered that the plaintiff's "prognosis is generally good" and that prognosis "would be improved" with a reduction, or cessation of, his alcohol intake, something that I consider to be a realistic possibility following the treatment recommended by Dr Prior which I have made allowance for. Put simply, completion of that course would enhance the otherwise good prognosis that the plaintiff has. 3. Dr Prior was not asked, when giving evidence, to express an opinion that the work that the plaintiff had recently secured with Brambles was likely to be disrupted; and no questions were directed to the plaintiff, when he gave evidence, on this issue. 4. The plaintiff is currently 65 and it is unclear how long he intends to work into the future – he was simply not asked any questions about this. I accept that that would not foreclose an award as a "buffer", but it means that the period over which this claim was to be assessed was simply unknown. Loss of superannuation entitlements 1. In view of the finding that I have reached in connection with loss of earning capacity, I allow an amount, calculated at 11% of the loss quantified, to cover for loss of employer funded superannuation contributions. (The rate of 11%, it should be noted, was the one claimed by the plaintiff). 2. I allow $3,300 – being 11% of the award for past loss of earning capacity. 3. Interest on this amount, applying the rate (2.5%) and over the period claimed (20 years) by the plaintiff, is $1,650.00. Out of pocket expenses 1. Although the plaintiff incurred past treatment expenses – the precise nature and extent of that treatment was not established – it was accepted that those expenses had been met by Medicare and, further, that there was no obligation to repay those expenses. Accordingly, the plaintiff did not press a claim for claim for past medical or out-of-pocket expenses. 2. In relation to the future, the plaintiff's claim for medical expenses was based upon the expression of the need for such treatment by Dr Prior and I accept that there is a reasonable injury related need for them – that is, "10 to 15 sessions over a 12 month period on an outpatient basis at a cost of $240 per treatment session" (I allow 15), as well as the alcohol counselling to which reference has been made - totalling $4,000 (see [91], above). 3. I allow the amount claimed, being $7,600. Aggravated damages 1. The plaintiff claims aggravated damages in the amount of $20,000. The basis of this claim, as put in submissions by the plaintiff, was that there was, in substance, a "real breach of… trust which was provided which by itself results in the hurt feelings which is often referred to". 2. Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). They are awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1987] HCA 47. That is, they are awarded when the harm done by the wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40; State of New South Wales v Abed [2014] NSWCA 419 at [231] (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing). The entitlement to aggravated damages therefore turns upon establishment of these elements. The defendant's conduct 1. In order to secure an award of aggravated damages, typically (but not invariably) there must be "conscious wrongdoing in contumelious disregard of another's rights": Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70 at [14] (Gleeson CJ, McHugh, Gummow and Hayne JJ). In State of NSW v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [138] (Hodgson JA,Sheller JA and Nicholas J agreeing) ('Riley'), explained that whilst the presence of malice was not essential to ground an award of aggravated damages, and gave some guidance on the character of the defendant's wrongful conduct necessary to support such an award: "Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong-doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court's disapproval ..." Injury to feelings 1. As aggravated damages, like compensatory damages, are directed towards injury to (or hurt) feelings, the Court must take care not to "double-count". This is particularly relevant in a case whether the injury relied upon to justify an award of damages is psychiatric, rather than physical, injury. This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach; that is, an award of so much as is necessary to bring the damages up to the upper end of the available range: Riley at [131]-[133] (Hodgson JA, Sheller JA and Nicholas J agreeing); State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 at [95]-[96] (Sackville AJA, Beazley and Macfarlan JJA agreeing). 2. A difficulty with awarding aggravated damages is that (a) no submissions were directed to whether the conduct of the defendant was of the requisite kind to come within the authorities to which I have made reference (I am prepared to assume that it is); and (b) the plaintiff gave next to no evidence at all about his feelings other than have been the subject of earlier findings by me in relation to the Other Specified Trauma and Stressor Related Disorder: see [98], above. In that context, I have approached the matter on the basis that there has been an unspecified degree of injury to the plaintiff's feelings occasioned by the 'shower incident', and I have made due allowance for this in assessing the plaintiff's entitlement to general damages at the upper end of what I considered to be reasonably available – in line with the authorities that I have just mentioned. Summary of damages award 1. I provide the following summary of the damages I have awarded: General Damages $100,000.00 Interest on general damages $60,000.00 Past loss of earning capacity $30,000.00 Interest on past loss of earning capacity $15,000.00 Past loss of superannuation $3,300.00 Interest on past loss of superannuation $1,650,00 Future out-of-pocket expenses $7,600.00 Total $217,550.00 Orders 1. I make the following order: verdict and judgment for the plaintiff in the sum of $217,550.00. 2. I will hear the parties on costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2022