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What price? Quantifying loss for survivors of childhood sexual abuse

What price? Quantifying loss for survivors of childhood sexual abuse

By Grace Wilson and Michael Magazanik

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In August 2017, a survivor of childhood sexual abuse was awarded more than $700,000 in damages by the Victorian Supreme Court. The decision offers lawyers in the field timely guidance.

Snapshot

  • Complexities in assessing the causal link between childhood trauma and adult outcomes do not preclude survivors from claiming compensation for loss of earning capacity.
  • Time spent researching liability with witnesses is a critical investment for the plaintiff’s case.
  • Practitioners now have access to an up-to-date decision in which the Court has assessed loss for a middle-aged adult survivor of childhood abuse with moderate trauma.
  • Robert Leonard Morris preyed on primary students in Victorian government schools between 1966 and 1980. A teacher by profession, his extra-curricular passions included coaching junior baseball and swimming, and leading Cubs.

In 1966, as soon as Morris qualified as a teacher, he was sent to a remote single-teacher school in country Victoria, and immediately began abusing boys in his class. The alarm was raised, and Morris fled the school and town before the end of the school year.

The next year, 1967, saw the same story. Morris was posted to another tiny town, another tiny school, and once again was the only teacher. He set about abusing multiple boys and he wasn’t discreet: one of the girls saw what he was doing to a classmate and told the boy’s mother. Enraged, she confronted Morris and the next day she hitched a ride to the neighbouring town and told the principal of a larger school. As a result, Morris disappeared, but the next year he was teaching again.

Several years and several schools later, Morris arrived at a school on Melbourne’s suburban fringe. Some children liked him and wanted to be in his classes. Morris set up a little “TV studio” – a set children could go behind to pretend they were on TV. Of course, some children soon grew terrified of the TV studio – the set was a cover for his abuse.

A few years and many victims later, Morris encountered Tom,1 a “bright, happy”2 eight-year-old boy. At least twice a week during 1974, Morris sexually abused Tom during class. Intensely distressed, Tom withdrew into himself, the start of a desperate life-long battle with anxiety. Tom obsessively worried that other children had noticed what Morris was doing. He was right. The children all knew. Forty years later, fellow students told Tom’s lawyers exactly what Morris was doing to their classmate.

During the year that Morris taught Tom, Tom’s mother noticed that her happy little boy suddenly couldn’t sleep without the light on and was becoming withdrawn. She wondered if something was going on at school. She decided to talk to Tom’s teacher – Morris, her son’s abuser. Morris reassured her that Tom was just shy, that he was giving Tom some special help, training him to speak into a microphone to help him get past his shyness. Tom’s mother is so disgusted by the memory of that meeting that 40 years later she finds it hard to talk about.

Halfway through that year, another boy in the class who was assaulted by Morris told his parents about it. That boy’s father told the principal, who promised action. The principal is dead, but all he did was tell Morris to remove posters from his windows so that other staff could see into the classroom. Morris kept abusing Tom. On the last day of the year, a little girl who as a woman in her 50s would give evidence in Tom’s case, decided to tell her mum that Morris was abusing boys in her class. Her mum told a member of the school board. The school board member told the principal, who told the district school inspector.

What happened to Morris? Nothing. The next year he started at a new school in a distant suburb. The same pattern followed, boy after boy abused in the classroom, on buses, on school camp. Finally, in 1977, Morris was caught. A boy had to go to the doctor because Morris’ abuse had left him bruised and in pain. The police got involved. Other children spoke up. In 1978 a group of brave students gave evidence in the County Court. That memory haunts each of them. They were accused of ganging up on a strict teacher, cross-examined at length and Morris was acquitted.

The children were offered no support. But Morris, exonerated in the eyes of the Education Department, was returned to the classroom and went straight back to abusing his students. Finally, in 1980, he was charged again, pleaded guilty, given a slap on the wrist and told to get counselling. His career in the Victorian education system came to a belated end.

There it rested for almost 30 years, until his former students, now men, started going to the police. In 2016, after months of denying everything, Morris pleaded guilty to abusing six further students and was jailed for six years.

Civil litigation

In 2016, shortly after Morris was jailed, 113 survivors of Morris’ abuse issued writs against him and the state of Victoria. This group included boys who had been called liars in 1978 and others who had never been to the police. Many had struggled with depression, post-traumatic stress disorder, alcoholism and anxiety.

The parties and the Supreme Court wrestled (cooperatively but with some difficulty) over the appropriate management of a group of individual cases with similar but not identical liability evidence. The individual damages claims were of course completely distinct.

Eventually, an agreement was reached that the claim for the survivor with the most urgent medical needs and personal circumstances would go first. Evidence given in that case would be tendered in future cases without witnesses having to be recalled. If the first case settled during trial, the next trial would start immediately, until one of the trials had run to verdict. Then the remaining trials, if any, would be listed.

Ultimately, 10 of the 11 cases settled out of court, two for in excess of $1.5 million. Tom’s claim ran to verdict.

Liability

An exhaustive liability investigation was a priority. Representing the plaintiff Tom, we travelled across the state, finding and speaking with Morris’ former students, parents of those students, former teaching colleagues, other Education Department employees, members of various school councils and anyone else who would help build the liability case.

Almost everyone we contacted was willing to meet with us and talk, even if they found it difficult. Some had been thinking about Morris because the Royal Commission into Institutional Responses to Child Sexual Abuse had pushed their minds back to their time in Morris’ class. Many had reflected on their own action or inaction for decades. Witnesses who had preferred to keep their distance at the time of the 1978 and 1980 charges were willing to speak, many recognising that the least-said-soonest-mended attitude of the past had not served survivors well.

Eventually, we assembled a compelling liability narrative, backed by signed statements, about Morris’ grotesque history of offending and the fact that his superiors had missed many opportunities to stop the offending and report Morris to the police. Tom and his fellow survivors were ready for trial.

Rare guidance

On the eve of the first trial, in the face of a mountain of liability evidence, the State of Victoria admitted the negligence of its employees who had ignored or minimised evidence of Morris’ past offending. Tom’s case proceeded as an assessment of damages.

Given so few abuse claims have run to verdict in Victoria, the Court’s approach to assessing damages provides invaluable lessons for practitioners.

Evidence of loss

Like lots of survivors, Tom had almost never spoken about the abuse. He’d mentioned it very briefly to his parents and on a single occasion to his wife. He had never told his GP or any other health professional about it. He had never sought treatment for the anxiety symptoms that plagued him or taken medication. He had (and has) a long-term job, children he adores and very good physical health. He has, in his words, tried to get on with life.

Defendants routinely point to jobs and families, or the failure to seek any medical treatment, as evidence that survivors have survived abuse relatively unscathed and have a minimal or modest entitlement to damages.

Those arguments were made against Tom. He was cross-examined about every aspect of his life that could possibly (even fancifully) be interpreted as a sign of wellness, from his sex drive to his participation in a school play in the 1970s. At the end of all this, the State professed sympathy for Tom and submitted he was entitled to full and fair compensation in the amount of $100,000.

However, survivors and their lawyers can take comfort in the capacity of courts to recognise a less binary view of mental health. Zammit J acknowledged that features of Tom’s life were positive but cautioned that “the fact that he is married, has children, works and can participate in life's activities is not evidence that diminishes the impact of the abuse or establishes that the impact of the abuse has been minimal or superficial in his life . . .”4

The challenge of quantifying loss in childhood trauma

Predictions about the precise ways Tom’s life would have been different if the abuse hadn’t happened are speculative. Unlike cases where an injury occurs in adulthood, there is no clear before and after picture for abuse survivors. If Morris had never abused him, how happy would Tom have been? How mentally well? How successful in his career? These are difficult issues, but difficult does not mean impossible. The answers are intuitively obvious – happier, healthier and more successful. There was evidence to support the intuition.

Tom’s mother gave evidence about the boy he had been before the abuse and the changes she observed afterwards. The former classmate described a shift in Tom at the time of the abuse and what he was like at school in later years. Tom himself gave powerful evidence about the burden he carries and the strategies he has developed to cope. A work colleague gave evidence about the ways Tom’s anxiety limited his career prospects. A medicolegal expert, psychiatrist Dr Matthew Tagkalidis, gave evidence that the abuse caused a fundamental change in Tom’s developmental trajectory – “a very typical reaction,” he said.5

Assessment of general damages

The Court assessed Tom’s general damages at $260,000. Her Honour cautioned that each abuse case turns on its own facts and that no assessment in one case is binding in another. However, the general damages assessment provides practitioners with significant guidance. This is particularly so as Tom’s symptoms are in the mid-range of outcomes abuse survivors often deal with – he has significant mental health damage but has not been precluded from working and parenting, and he has not required hospitalisation.

This may be compared with the only other recent Victorian decision practitioners can turn to for guidance. In that case a much younger plaintiff, whose symptoms included a major psychiatric illness, self-harm, lengthy inpatient admissions and disturbance to her family relationships and sexuality, was awarded $300,000 in general damages by the Supreme Court. Her claim for pain and suffering was complicated by the effect of substantial pre-existing trauma on her mental health, which may account for the award of general damages in her claim not being significantly higher than in Tom’s case.

Loss of earning capacity

Zammit J acknowledged the impossibility of predicting the career Tom would have otherwise enjoyed, but said “the existence of uncertainties is not a barrier to the Court making an assessment of loss”.6

Accordingly, Zammit J reached conclusions about the most probable career trajectory the plaintiff would have had but for the abuse. She accepted the calculations set out in a report by forensic accountant Mark Thompson in relation to one of several possible career progression scenarios. Her Honour then discounted that calculation of loss significantly to take account of the “range of possible eventualities independent of the abuse related injury”7 which might have limited his earning capacity.

The total past and future pecuniary loss awarded was $420,000. The total damages sum was more than seven times greater than the $100,000 figure which the State had asserted would be fair.

Beyond Tom’s claim

Decisions in claims for abuse survivors are still needed. Most past decisions significantly pre-date the conclusion of the Royal Commission into Institutional Responses to Child Sexual Abuse. Tom’s claim is only the second to run to verdict in Victoria in recent memory. It’s likely that the cultural shift fostered by the Royal Commission – including a more complete appreciation of the devastating consequences of child sex abuse on survivors – will be reflected in future decisions.

And changes to the Limitation of Actions Act, data from the Royal Commission confirming that survivors who issue claims and agitate more aggressively get better financial outcomes,8 and a gradual cultural shift in which some survivors and witnesses are less reluctant to tell their stories, all point to the probability that there won’t be long to wait for the next one.

 

Grace Wilson is a partner at Rightside Legal. She represents personal injuries clients, in particular, survivors of childhood sexual abuse in institutions and people who suffer from asbestos-related diseases.

Michael Magazanik is a partner at Rightside Legal. He represents personal injuries clients, in particular, survivors of childhood sexual abuse in institutions and people who suffer from asbestos-related diseases.

The authors represented the plaintiff "Tom".

 

 

1. Not his real name. “Tom” is used out of respect for the privacy of the plaintiff and in compliance with the Judicial Proceedings Act 1958.

2. Judgment, at [38]. Full citation of the judgment is not provided in compliance with the Judicial Proceedings Act 1958 as it contains the plaintiff’s name. A copy of the judgment can be obtained from Rightside Legal.

3. More survivors have since come forward.

4. Judgment, at [65].

5. Judgment, at [81] and [85].

6. Judgment, at [230].

7. Judgment, at [239].

8. See for example the April 2017 publication of the Royal Commission into Institutional Responses to Child Sexual Abuse, “Analysis of Complaints of Child Sexual Abuse Received by Anglican Church Dioceses in Australia”, p34.

 


Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

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