Case Summary – Institutional abuse: Steen v Trustees of the Diocese of Tasmania [2024] TASSC 3 (15 February 2024)

The case of Steen ('Judgment') was a notable ruling regarding the assessment of damages in Tasmanian Institutional Abuse cases. The Tasmanian Supreme Court set aside a thirty-year old settlement and awarded the plaintiff $2.4 million in damages for the same claim.

Recent case law and legislative amendment has confirmed that deeds of release cannot be relied upon "as an absolute bar to prosecution" and shall not preclude the applicant from reopening their claim.

BACKGROUND

The case involves a 53-year-old plaintiff who brought this action with respect to sexual abuse perpetrated upon him by an Anglican Priest when he was a child. The abuse occurred on four different occasions between 1981 and 1987, when the plaintiff was aged between 10 and 16. The abuse occurred at annual summer camps where the abuser was a director and perpetrated the abuse upon the Plaintiff.

The alleged abuser was a Priest, Louis Daniels ('the Priest'),who was a prominent staff member and leader of the Church of England Boys' Society (CEBS) and the plaintiff was a member of the organisation. The Defendant admitted that the Priest was employed by it and under its supervision and control at all relevant times.

In 1994, the plaintiff settled a claim against the defendant. In 2022, the plaintiff made another claim against the defendant seeking further damages.

The plaintiff alleged vicarious liability and negligence on the defendant's part for failing to supervise and protect him. The defendant admitted liability for both causes of action. The Defendant also fully admitted to the particulars of the abuse perpetrated by the Priest and the consequent causation of injury to the plaintiff.

There were two key issues:

1. Whether the deed could be set aside pursuant to s 5C of the Limitation Act 1974 (TAS), or whether the prior deed operated as an absolute bar to the prosecution of the action and hence, provided a complete defence.
2. If the deed of release was set aside or rescinded, the quantum of damages would be in dispute.

THE DEED

The 1994 Deed was a settlement of $34,000. Brett J held the 1994 Deed to be valid, but the issue was whether the 1994 Deed could be set aside per section 5C of the Limitation Act 1974 (Tas).

Brett J found that the Defendant's denial of liability in 1994 was oppressive, the clear conflict between the denials in 1994 and the acceptance of responsibility now, supported the setting aside of the agreement.

Additionally, the Plaintiff made an argument that the Deed should be rescinded due to unconscionability and fraudulent misrepresentation. That argument failed and Brett J was not satisfied the Plaintiff has made out a case that the deed should be set aside either for unconscionable conduct or fraudulent misrepresentation.

DAMAGES

The total assessment of damages was approximately $2.4 million.

Summary

1. Non-Economic Loss (Judgment at [229] – [238])

Damages for pain, suffering and loss of enjoyment of life was assessed at $275,000. In assessing the award of damages, Brett J relied on Blow CJ in ZAB v ZWM [2021] TASSC 64 at [122] to account for awards generally throughout Australian jurisdictions and referred to decisions awarding a range from $250,000 to $400,000.

Brett J considered the assessment of Dr Weissman which explained that the abuse occurred at the Plaintiff's critical development stage between 9 – 16 years old. Dr Weissman diagnosed the Plaintiff with the following: Persistent depressive disorder, generalised anxiety disorder, chronic moderate post-traumatic stress and anxiety syndrome and possible anxious-avoidance personality traits (see Judgment at [215]). The abuse therefore underpinned the development of the ongoing and permanent psychological consequences, manifesting as moderate to moderately severed longstanding psychiatric symptoms, conditions and mental injuries.

Brett J accepted that the sexual abuse impacted the plaintiff's school performance including his academic results, university education and his professional life.

2. Aggravated Damages (Judgment at [239] – [250])

Brett J sought to distinguish between aggravated and exemplary damages because of the commonality of factors and circumstances relied upon by the plaintiff to support each claim. The Aggravated damages therefore focused on the impact on the plaintiff and the consequent need for compensation, whereas for exemplary damages, Brett J focused on the conduct of the defendant (see Judgment at [246]).

The defendant's counsel accepted that the 'defendant's response to the sexual abuse down to the time of trial was relevant to the assessment of aggravated damages' (see Judgment at [248]). The relevant factors considered included:

Considering the factors above, Brett J awarded $125,000 in aggravated damages due to the church's negligence and failure to properly appreciate the seriousness and ongoing effects of the abuse.

3. Exemplary Damages (Judgment at [251] – [270])

Exemplary damages were awarded having regard the following factors: the defendant's prior knowledge of the Priest's propensity to commit child abuse and allowing him to remain in his position with CEBS to commit further abuse. Furthermore, Brett J also considered the failure by the defendant to take responsibility for the Priest's conduct during the negotiation of the 1994 settlement.

Exemplary damages of $100,000 was awarded due to the church's contumelious behaviour.

4. Loss of Earning capacity (Judgment at [271] – [289])

Brett J considered that there was weak evidence that the plaintiff would have taken an alternative career pathway as a geologist or mining engineer. Brett J concluded that there was significant and long-term impairment of earning capacity manifesting from time to time which was not always productive of financial loss given that Plaintiff was rather accomplished considerable academic success, having completed an honours degree and two PhD's. Therefore, Brett J adopted a "broad brush" approach to this assessment and awarded a sum of $350,000.

5. Future Economic Loss (Judgment at [290] – [303])

The Plaintiff submitted that but for the effects of the injuries, he would have continued to work in his current occupation until the age of 67. However, his psychological injury of depression and anxiety has resulted in a total incapacity work and retirement was therefore his only reasonable option.

Brett J analogised the assessment of damages for future economic loss to Medlin v State Government Insurance Commission where a university professor who had sustained an injury as a result of a motor vehicle collision, made a decision to accept premature retirement. Brett J concluded that the Plaintiff would have some capacity to work time to time and that the partial incapacity to work resulted from the psychological symptomology arising from the tortious conduct, the abuse. Therefore, Brett J assessed damages on the basis that would still have a partial earning capacity until the age of retirement. Brett J awarded $1,183,720 for future economic loss, which was calculated based on 60% of the plaintiff's current income and the 13-year period until retirement at 67.

An additional $155,940 was awarded for loss of future superannuation benefits.

6. Other Considerations (Judgment at [304] – [329])

Additionally, $81,711 was awarded for treatment for past and future medical expenses.

Based on the case law, Brett J concluded that the award of interest is a matter of discretion and calculated pre-judgment interest from the date of commencement of the action, as opposed to from the date of the subject abuse. Pursuant to s 35A of the Supreme Court Civil Procedure Act 1932, Brett J adopted the position of Blow CJ in ZAB v ZWM and Wood J in Dann v Port Sorell Bowls Club Inc (No 2) [2020] TASSC 53 to calculate interest on a simple basis at 4% per annum. Brett J awarded pre-judgment interest for the whole amount of damages awarded for past economic loss. With respect to non-economic loss and aggravated damages, Brett J awarded interest for the general damages component but not for the exemplary head of damages, on the basis that the award of interest is intended to be compensatory and not punitive.

7. Deductions

Although the amount paid under the previous deed relates to the child abuse to which the cause of action is based on, Brett J rejected that a deduction of $34,000 paid under the prior deed should be made with respect to the award of damages.

Conclusion

The recent decision in Steen v Trustees of the Diocese of Tasmania [2023] TASSC 3 is another example of the Court's willingness to set aside a previous deed in the 'interests of justice'. The $2.4 million settlement also signifies the rising awards of damages in Tasmanian historical sexual abuse cases, which is now comparable to similar cases in other Australian jurisdictions.

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