The price of institutional abuse

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By Jef Sewell, Special Counsel and Edward Cope, Law Graduate 

The District Court of Western Australia has considered the lifelong consequences of institutional abuse, in circumstances where the plaintiff had suffered other pre-existing emotional trauma and had also suffered post-institutional abuse. The Court concluded that the institutional abuse pre-disposed the plaintiff to abuse after he left the institution, and that the institutional abuse had diminished the plaintiff’s learning (and therefore earning) capacity. The Court awarded approximately $1.3m in damages, including pre-judgment interest (but declined to award exemplary damages). Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 – 11 March 2020 Herron DCJ

Background

Institutional abuse

From 1953-1957, the Plaintiff was extensively sexually, physically and emotionally abused at Castledare and Clontarf orphanages in WA, which were operated by the Defendant Christian Brothers. At the time, the Plaintiff was approximately 9 to 13 years old.

In addition to the sexual abuse, the Plaintiff was subject to excessive physical punishment, emotional abuse, depersonalisation, lack of individual care or mentoring, malnourishment, insufficient clothing, and a poor education at the orphanages.  He was thrown out of the orphanages as an illiterate adolescent, with a lack of social skills and resources, and little employment opportunities.

The perpetrators included four Brothers, a working boy and the Plaintiff’s school teacher.

On the first day of trial, the defendant admitted liability for certain sexual abuse allegations made against them, and the trial proceeded as an assessment of damages.

Prior abuse and neglect

The Plaintiff, who was born in Birmingham before immigrating to Australia at age 8, had suffered emotional trauma before arriving at Clontarf.  He was placed into institutional care in the UK when he was aged 6 having been neglected, physically abused and ultimately abandoned by his mother.

Post-institutional sexual abuse

After leaving Clontarf, at the age of 17 the Plaintiff was raped.

Outcome and Observations

The Plaintiff was awarded damages of $1,329,500.

General Damages

Diagnosis of Psychiatric Injury

The court accepted the evidence of a consultant psychiatrist (Dr Shub) who diagnosed the Plaintiff as having suffered from Major Depressive Disorder and PTSD for the majority of his life.

Causation

The court accepted Dr Shub’s opinion that the major contributing factor was the child sexual abuse he suffered at Clontarf and Castledare, not the Plaintiff’s early dysfunctional family experience, and that the Plaintiff’s sexual confusion, low self-esteem, and lack of social skills, which were the result of previous institutional abuse, – had predisposed him to the subsequent rape.

Dr Shub found a significant connection between the abuse, the Plaintiff’s poor education and intelligence, and his limited earning capacity. It was highlighted that the Plaintiff, who was a child being taught and mentored by his rapist(s), was limited in his capacity to concentrate, focus, process and recall information. The Plaintiff’s illiteracy was decisive in his confinement to labour intensive duties, and his lack of social skills and anxiety precluded him from progressing further at work.

While Dr Shub accepted that the Plaintiff’s formative years were impacted by his abandonment and maltreatment by his mother, and status as an orphan immigrant, that was one factor but not the predominant factor in his psychiatric condition. They were not as ‘pathogenic’ as the sexual abuse. It was likely that, had he been placed in a caring, supportive, protected environment the Plaintiff would have fared considerably better in life.

Loss of earning capacity

The Plaintiff’s working life was interrupted by a back injury sustained in a bus accident which required surgery.  In assessing economic loss, the court divided the Plaintiff’s working life into two periods, before and after his back surgeries.

The first period consisted of the Plaintiff’s employment between the ages of 18 and 45, the age at which he began to receive the disability support pension due to his back condition.  Given the Plaintiff’s lack of employment records, His Honour adopted a calculation of his actual earnings by reference to the average weekly earnings, and applied a discount factor of 21% to reflect the age when he left school and the type of work performed.

The Christian Brothers submitted that this 21% education discount should also be applied to his notional earnings, given that he would have received a poor education and left school at the same age regardless of the sexual abuse.  The court rejected this argument, on the basis that the employment actually obtained by the Plaintiff did not determine or limit the range of work which might have been available to him but for the sexual abuse.

Rather, the court considered ‘concurrent matters’, besides the institutional abuse, which contributed to the Plaintiff’s psychiatric injury and hence his loss of earning capacity.  It attributed ‘some weight’ to the Plaintiff’s lack of education, non-sexual abuse, post-institutional rape; ‘little’ or ‘very little’ weight to his childhood in Birmingham and immigration; and ‘no weight’ to the bus accident, or periods of incapacity from work due to self-harm, alcoholism or violence.  Accordingly, it applied a discount factor of 10% for the first period.

The second period of the Plaintiff’s notional working life was framed between the ages of 45 to retirement at 66. It was considered likely that the Plaintiff would have continued to work in this period, but in a less physically demanding role following his back surgeries.  Had it not been for the institutional sexual abuse, he would have acquired more workplace skills and qualifications, and would have been literate.  Given his work ethic, he would have exercised his retained earning capacity for as long as his health permitted. In this respect, the plaintiff suffered from general poor health in the later stages of his life, having been diagnosed with Type II diabetes, extensive cardiovascular issues, leukemia, and signs of dementia. The possibility that he would not have worked to retirement aged because of his health was considered.  Accordingly, a discount factor of 35% applied to the second period.

Pre-judgment interest

The Christian Brothers argued that the Plaintiff was not entitled to interest on any damages for past loss awarded to him. Given that the current provision for prejudgment interest was not passed by Parliament until after the Plaintiff’s abuse occurred, the Christian Brothers argued that they would not have been liable for prejudgment interest regardless of the abolition of the limitation period.

The court rejected this argument, finding that the Defendant’s liability with respect to interest is determined by the current law, not by law as it existed when the cause of action accrued.

Exemplary Damages

The court held that this case did not warrant an award of exemplary damages. Ultimately, exemplary damages would not serve a deterrent function given that the perpetrators in this case were all dead.  Although the Defendant knew about some abuse, there was no evidence that the Defendant deliberately ignored or hid the allegations and it was noted that the Christian Brothers have engaged in significant restorative processes and paid significant compensation to victims, no longer operated as a teaching or boarding institution, no longer had any association with children, had gifted Clontarf to an Aboriginal organisation, issued an apology, and reviewed its policies and procedures.

Takeaways

This case serves as a reminder that significant prior and subsequent issues may not necessarily be viewed by courts as major contributing factors to a claimant’s psychiatric condition arising from compensable abuse.  It also provides an example of how a claimant’s learning and work trajectory are substantially affected by their child abuse, causing lifelong reduced prospects and economic loss, despite other factors.

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