JMW1 v Salvation Army (NSW) Property Trust

1. [1]

   By an Amended Statement of Claim filed 30 November 2018, the plaintiff, who has the pseudonym JMW1, sued the Salvation Army (NSW) Property Trust (“the Salvation Army”) for damages for sexual assault which occurred whilst the plaintiff, as a young boy, lived at the Bexley Boys’ Home (“Bexley”), a residential care institution for children conducted by the Salvation Army.

2. [2]

   The plaintiff also made a claim for damages against the State of NSW with respect to his incarceration at the Albion Street Shelter, the Darlinghurst Police Station and at Long Bay Correctional Centre. The plaintiff’s claim against the State of NSW has been resolved, and the plaintiff has discontinued that claim. The Salvation Army remains the only defendant, although it is described from time to time in the pleadings as the second defendant.

Claim against the Salvation Army

1. [3]

   The plaintiff has pleaded in a Second Amended Statement of Claim particulars of the abuse at Bexley, which he claims was perpetrated upon him by Captain McIver, a Salvation Army officer, together with other unnamed officers, who were residential staff at the Home. One occasion of sexual assault is alleged to have occurred whilst the plaintiff, who was still a resident a Bexley, was taken with other children on an excursion to Central Australia where one of the Salvation Army officers abused him during that excursion.

2. [4]

   As a result of the abuse perpetrated upon him by Captain McIver and the other Salvation Army officers who were engaged, employed or appointed by the Salvation Army, the plaintiff claims that he suffers from:

3. [5]

   The plaintiff pleads that the Salvation Army owed him a duty to take reasonable care to avoid foreseeable risks of harm to him and to prevent him from being sexually or physically abused. He also claims that the Salvation Army owed him a non-delegable duty of care to ensure that reasonable care was exercised to protect him from sexual or physical abuse. He pleads that in various ways the Salvation Army was in breach of that duty and caused his injuries, loss and damage.

4. [6]

   In addition, he claims against the Salvation Army that it is vicariously liable for the acts of Captain McIver and the unnamed Salvation Army officers. the plaintiff claims exemplary damages.

Defence to Claim

1. [7]

   The Salvation Army admitted that it was responsible for the care, management and control of Bexley and the residents in it.

2. [8]

   It admitted that for three periods – being for a little over two years between 1962 and 1964; for about a year between October 1970 and October 1971; and for about four months between June and October 1973 – the plaintiff was a resident at Bexley. The Salvation Army admitted that it owed the plaintiff a duty but denied that it was in breach of it. It admitted that a John McIver was a Salvation Army officer who was appointed as a Second Officer at Bexley from 1968 to 1971 and then appointed as Assistant Manager from 1972 to 1974.

3. [9]

   For present purposes, the significant part of the Defence was as follows:

Reply to Defence

1. [10]

   The plaintiff, whilst represented by solicitors, filed a reply to the Defence set out above, which was in the following terms:

2. [11]

   Although the terms of this Reply were inappropriately formulaic, and in some cases completely inapposite for the true facts and circumstances, the Salvation Army did not rely upon any point rising from these infelicities of pleading. They invited the Court to deal with the substance of the matters raised in the Reply.

Notice of Motion

1. [12]

   On 25 May 2020, the Salvation Army filed a Notice of Motion in which it sought that the Court determine as a separate question the issue raised by the paragraphs of the Defence set out at [9] above, and the Reply at [10]. The formal orders sought were:

2. [13]

   On 26 June 2020, with the agreement of the plaintiff (who was by then unrepresented), the Court made an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (“UCPR”) that the following questions be determined separately from, and in advance of, any other question in the proceedings:

3. [14]

   In making an order in that form, I took the view that the first two questions posed in the Notice of Motion did not need to be separately specified. The substantive question as stated inevitably involves a consideration of any issues concerning whether the Deed was valid and enforceable or else whether it should be set aside.

4. [15]

   With the agreement of the parties, the hearing of the separate question was fixed to take place on 21 August 2020. The hearing was conducted with each party attending the Court room remotely. Because the plaintiff was an interstate resident and could not travel to NSW, he attended, at the Court’s request, at AVL facilities provided by the Supreme Court of the State in which he lived. An AVL link was successfully established, and the hearing took place on the day fixed.

5. [16]

   Prior to the hearing commencing, in accordance with various directions, the plaintiff was served with the evidence to be relied upon by the Salvation Army. This consisted of an affidavit of Mr Thomas Baker, a solicitor, sworn 22 May 2020 to which was annexed a bundle of documents (Exhibit TB1).

6. [17]

   The plaintiff indicated that he did not wish to cross-examine or ask any questions of Mr Baker, the deponent of the affidavit upon which the Salvation Army relied.

7. [18]

   The plaintiff, because he was unrepresented, and at his request, gave his evidence orally, without having filed any statement or affidavit in advance of the hearing. He was cross‑examined by senior counsel for the Salvation Army. At the conclusion of his evidence, submissions were taken.

Relevant Facts

1. [19]

   I have been satisfied that the following facts are established by the evidence.

2. [20]

   Mr Baker, a qualified solicitor, was employed between August 2013 and April 2015 by the firm Kelso Lawyers (“Kelsos”). At that firm, he conducted litigation and dispute resolution.

3. [21]

   Between 18 March 2014 and January 2015, the plaintiff consulted with Kelsos with respect to a claim that he wished to make against the Salvation Army arising from his allegations of having been abused by officers of the Salvation Army whilst a resident at Bexley.

4. [22]

   The retainer of Kelsos by the plaintiff was evidenced by a signed conditional Costs Agreement, which was sent by the plaintiff to Kelsos and accompanied by a letter of 13 March 2014 which was received by Kelsos on 18 March 2014. The Costs Agreement was signed that day by Kelsos.

5. [23]

   I should note that at the time of the retainer, the plaintiff lived interstate, at the same address where he now lives. Kelsos was a firm based in the suburbs of Newcastle. It is obvious that for any conference to be conducted in person required significant travel and inconvenience for either the plaintiff or a solicitor from Kelsos.

6. [24]

   One of the first tasks that Mr Baker, the solicitor with carriage of the matter at Kelsos, performed was to send to the plaintiff a copy of a transcript of an interview between Mr John Greville from the Professional Standards Office of the Salvation Army, and the plaintiff which had taken place on 6 February 2014.

7. [25]

   That interview commenced at 12.22pm and finished a little over two hours later, at about 2.35pm. The transcript occupies 69 pages and includes 373 questions.

8. [26]

   The transcript records that at the outset Mr Greville introduced himself to the plaintiff by name and said he was from the Professional Standards Office of the Salvation Army. The covering letter which was later sent by Mr Greville to the plaintiff on 24 February 2014, described him as a Senior Investigator with the Professional Standards Office.

9. [27]

   The sequence of events seems to have been that, presumably, after some arrangement was made, Mr Greville attended at the plaintiff’s home on 6 February 2014, for the purpose of conducting the interview. The interview was sound recorded. A transcript was prepared.

10. [28]

    A little under halfway through the interview, it was suspended, and a break was taken – which was described upon resumption as a lunch break.

11. [29]

    Shortly before the interview concluded, Mr Greville asked the plaintiff if he wished to undertake some counselling and he was invited to provide Mr Greville with the identity of any counsellor to whom he could be referred by his GP. The plaintiff acknowledged that and said this:

12. [30]

    The plaintiff was asked if he had any complaints about the way the interview had been conducted, and he said that he did not. He said to Mr Greville that “You’ve been very honest and truthful from what I can see”.

13. [31]

    On 24 February 2014, a letter was sent by Mr Greville to the plaintiff, which attached a written transcript of the interview, together with a CD with the audio file of the interview. The plaintiff was asked to read the transcript and, if necessary, make any amendments and return it to Mr Greville.

14. [32]

    Shortly after that interview, Kelsos were retained. In a telephone discussion on 11 April 2014 between Mr Baker and the plaintiff, the plaintiff suggested that some of the dates, times and places in the transcript were wrong. He was invited by his solicitor to highlight the areas which he said were incorrect, and then return that copy of the transcript to the solicitors so that they could have a discussion over the telephone about the accuracy of it. There is no evidence about whether that happened.

15. [33]

    Shortly after that conversation with Mr Baker the plaintiff sought to contact Mr Baker again. However, he was unavailable. The plaintiff left a phone message to the effect that he was having difficulty reading the transcript because it brought up a lot of bad memories, but that he wanted to make some changes, but he was still going to sign everything.

16. [34]

    By a letter dated 11 May 2014, which I infer was written for the plaintiff by his wife, and signed by him, the plaintiff seems to have returned the signed transcript to Mr Baker. In the covering letter, the plaintiff said:

17. [35]

    On 28 May 2014, Mr Baker wrote to the Director of the Professional Standards Office of the Salvation Army, informing the Salvation Army that he acted for the plaintiff in his claim for compensation for the sexual, physical and psychological abuse which the plaintiff had suffered at Bexley. This letter enclosed a copy of the transcript and made some remarks about the accuracy of it. The letter also summarised the events of which the plaintiff was complaining and drew attention to the particular features of the events.

18. [36]

    The letter continued:

19. [37]

    Mr Baker had a phone conversation with the plaintiff on 25 August 2014. He took a contemporaneous note which I am satisfied is accurate. Mr Baker noted that the plaintiff told him that his wife was in a wheelchair as a result of a car accident, and that he was caring for her full-time. The plaintiff indicated that he had not followed through with obtaining counselling despite his GP’s suggestion.

20. [38]

    The plaintiff gave Mr Baker some instructions with respect to his financial position. They were recorded as follows:

21. [39]

    It appears that Mr Baker then discussed a number of central issues with the plaintiff about litigation. The note recorded the following:

22. [40]

    Arrangements were made by staff at Kelsos for the plaintiff to be examined for medico-legal purposes by a psychiatrist. Despite reminders to do so, the plaintiff did not attend that appointment.

23. [41]

    On 17 September 2014, Mr Baker spoke with the plaintiff by telephone. It is clear that, in the course of this discussion, arrangements had been put in place for the plaintiff to fly from Brisbane to Sydney on 25 September 2014 for the purpose of attending a restorative justice conference arranged with the Salvation Army.

24. [42]

    What occurred on 25 September 2014 is a matter of real concern to the plaintiff. Mr Baker prepared an extensive file-note. I accept its accuracy as a summary of what occurred.

25. [43]

    It appears that Mr Baker met with the plaintiff at about 1.30pm at a café near the offices of the Salvation Army. There had been telephone calls between them prior to that time in order to make those arrangements. At the café there was a discussion between Mr Baker and the plaintiff, during which Mr Baker told the plaintiff what would be occurring.

26. [44]

    That note includes the following:

27. [45]

    It is apparent that the meeting with the Salvation Army commenced at 2pm. Mr Baker and the plaintiff entered the meeting room at about 2.10pm. The plaintiff gave an account in evidence of what had occurred to him at Bexley over a period of about 1.5 hours. Mr Baker noted the central features of that account as provided.

28. [46]

    Mr Baker noted the following of the plaintiff:

29. [47]

    Following a break at about 3.30pm, the meeting resumed at about 3.45pm. Mr Baker noted the following:

30. [48]

    There were some features of that meeting which occupied the plaintiff’s evidence. He said that he had not met Mr Baker, his solicitor, before and that Mr Baker was late turning up to meet him at the coffee shop prior to the Salvation Army meeting. The plaintiff seemed to suggest that this meant that the meeting started off on the wrong footing. The plaintiff gave this evidence of the effect of the meeting upon him:

31. [49]

    The plaintiff said that after the break during the meeting, he returned and by that time he was:

32. [50]

    The plaintiff’s recollection is that whilst no agreement was reached during that meeting, his solicitor, Mr Baker, spoke with him after the meeting had finished and whilst they were walking to the plaintiff’s accommodation. The plaintiff said that Mr Baker

33. [51]

    The plaintiff’s evidence was that he felt at the end of that meeting and after his discussion with his solicitor, Mr Baker, that it was not an available option to go to Court. He then said this:

34. [52]

    The plaintiff noted in his evidence that after that particular occasion, he did not meet with Mr Baker in person again, but communicated with him either by telephone or else by the receipt of correspondence.

35. [53]

    To the extent that there is any conflict in the evidence recorded by Mr Baker in his file-note and that given orally by the plaintiff about the events of that day and the meeting, having regard to the time which has elapsed since this event, I regard the contemporaneous file-note of Mr Baker as being likely to be a more accurate and somewhat fuller account of what occurred on that day. I accept it in preference to the plaintiff’s unaided recollection.

36. [54]

    I do accept that the plaintiff did not find the experience a happy one. It is clear from Mr Baker’s file-note that the plaintiff was emotional, was tearful on one occasion, and was at times dramatic and defensive. I have not the slightest doubt that the subject matter of what was being discussed was upsetting for the plaintiff. I have no doubt, as he says, that it brought back very unpleasant memories of his time at Bexley. I have no doubt that the nature of the room in which this meeting took place had features which were reminders of some of the rooms at Bexley, and that there were features of the way in which the Salvation Army members and staff presented themselves on that occasion to the plaintiff that reminded him of his time at Bexley. None of that is inconsistent with anything Mr Baker has recorded.

37. [55]

    I would infer that one of the principal reasons for the restorative justice conference was to enable a senior officer of the Salvation Army to speak directly with the plaintiff and apologise to him for what had happened to him at Bexley. Clearly that occurred. The plaintiff found that apology convincing and he told Mr Baker that he had accepted the apology.

38. [56]

    Insofar as there were discussions about the possibility of litigating the proceedings in the Supreme Court, I am satisfied, as Mr Baker’s file-note records, that the options available to the plaintiff between receiving a payment from the Salvation Army limited in the amount on the one hand, as against the possibility of litigation in the Supreme Court, was discussed.

39. [57]

    I am also satisfied, as I would expect a responsible solicitor to do, that Mr Baker informed his client of the benefits and risks associated with litigation. In particular, at that time, the principal concerns about litigation were properly raised by Mr Baker, as I have noted at [43] and [46] above. I am also satisfied by Mr Baker’s file-note, which I prefer to the plaintiff’s recollection, that both before the meeting commenced and at the end of the meeting, the plaintiff expressed the view that he was not interested in litigation in a court, particularly if it would last over a number of years. I am also satisfied that, at the time of this conference, the plaintiff saw the benefit of a settlement with the Salvation Army so that he could address, with the help of that settlement, his then financial position, and also so that he could try to put his experiences at Bexley behind him to the extent possible. As well, it was a way in which the plaintiff’s other requests, such as for the Death Certificates of his parents, could be fulfilled.

40. [58]

    It is also clear, notwithstanding the plaintiff’s recollection to the contrary, that no monetary offer was made to him by the Salvation Army on that day.

41. [59]

    About three weeks later, on 9 October 2014, Mr Baker telephoned the plaintiff. He explained to the plaintiff that the relevant Salvation Army committee would be considering the position with respect to his claim – probably on the next day – and that he could expect an offer to be made in the following week. There was a discussion about the plaintiff attending a medico‑legal appointment on 22 October 2014.

42. [60]

    Four days later, on 13 October 2014, the plaintiff telephoned Mr Baker. He wanted to know when he was going to receive his money from the Salvation Army because he was under pressure from his Bank with respect to the arrears on his mortgage repayments. Mr Baker’s file-note recorded the following:

43. [61]

    Mr Baker assured the plaintiff that he would let him know as soon as an offer was made.

44. [62]

    The first offer of a settlement came from the Salvation Army to Mr Baker by email on 20 October 2014. The offer was that the Salvation Army would pay by way of an ex gratia payment the sum of $95,000 to the plaintiff on terms set out in a short Deed of Release. In addition, the offer included the provision of, or funding for, counselling without limit to the plaintiff for as long as was reasonably necessary.

45. [63]

    The email included a reference to a query which the plaintiff had raised during the restorative justice meeting, about the death of an individual, Mr Trevor “Ron” Hubbard. Attached to the email were a bundle of documents relating to his death and the record of the Coronial Inquest.

46. [64]

    As well, the Salvation Army offered to provide the plaintiff with family tracing assistance free-of-charge with respect to his mother’s death and the location of a grave – which was also a matter raised by the plaintiff in the course of the restorative justice conference.

47. [65]

    Finally, the offer confirmed that a written apology would be provided to the plaintiff on behalf of the Salvation Army.

48. [66]

    Mr Baker telephoned the plaintiff a little over an hour later. He compiled a file‑note on that afternoon of their conversation. It included the following:

49. [67]

    This was followed by a second phone call which occurred later that day. Mr Baker dictated a file-note of it on that day. I accept the contents of both of those file‑notes as being accurate.

50. [68]

    Mr Baker reiterated his view that before accepting the offer, the plaintiff should wait for the medico-legal report to come back from Dr Larder. The file‑note went on to record this:

51. [69]

    It is to be recalled that the medico-legal appointment had been arranged for 22 October 2014.

52. [70]

    On the morning of 21 October 2014, a legal secretary in the employ of Kelsos spoke to the plaintiff. The plaintiff told her that he would not be attending the medico-legal appointment on 22 October 2014, and that instead he would be accepting the offer. The secretary recorded this in a memo to Mr Baker:

53. [71]

    Having received that note, Mr Baker telephoned the plaintiff. He dictated a file‑note of his telephone conversation shortly afterwards. His file-note, which I am satisfied was an accurate note, recorded the following:

54. [72]

    Immediately following that phone call, Mr Baker telephoned the plaintiff again in order to confirm his instructions. Again, a contemporaneous file-note was dictated, the accuracy of which I accept. It recorded the following:

55. [73]

    Mr Baker, by email later that day, put the counter-offer of $120,000 to the Salvation Army.

56. [74]

    On the morning of 23 October 2014, the Salvation Army, through its lawyers, sent an email to Mr Baker, which included the following:

57. [75]

    Mr Baker telephoned the plaintiff on that day. It was only a quick phone call to tell him that the Salvation Army had accepted his offer of $120,000. Mr Baker’s file-note which I accept is accurate, recorded the following:

58. [76]

    Mr Baker informed him that there would be some paperwork for him to complete.

59. [77]

    On 29 October 2014, Mr Baker sent a letter to the plaintiff, enclosing the various settlement documents including a Deed of Release with instructions as to their completion. Included in that letter was an invitation to the plaintiff to telephone Mr Baker about the details contained in the letter. The plaintiff was asked to sign the documents and return them to Mr Baker.

60. [78]

    It will be necessary to come to the contents of the Deed of Release in due course.

61. [79]

    One of the documents sent to the plaintiff by Mr Baker was a written form of instructions from the plaintiff to Mr Baker to accept the offer from the Salvation Army. The letter of instruction set out the total of the offer, the legal costs and disbursements which he would be charged by Kelsos, and the sum of money which the plaintiff would obtain after the payment of those legal costs and disbursements.

62. [80]

    The plaintiff was asked to complete the details of his bank account into which the funds would be paid. The plaintiff completed that document and added the following note:

63. [81]

    On 4 November 2014, Mr Baker telephoned the plaintiff and had a discussion with him, the contents of which were recorded in a file-note which was dictated on that day and which I accept is accurate.

64. [82]

    It included the following:

65. [83]

    On 7 November 2014, Mr Baker sent to the solicitor for the Salvation Army the completed settlement paperwork. He asked for the payment to be expedited so that it would be received by the plaintiff before 19 November 2014.

66. [84]

    On 17 November 2014, the solicitor for the Salvation Army wrote to Mr Baker attaching a counter-signed Deed to be provided to the plaintiff. He also noted that the funds had been transferred on the previous business day and asked to be informed when they were received.

67. [85]

    Mr Baker confirmed receipt of the funds on the following day, 18 November 2014.

68. [86]

    The finalisation of the plaintiff’s claim having occurred, Mr Baker sent a final letter to the plaintiff on 24 November 2014.

69. [87]

    The letter enclosed the tax invoice and trust account statement with respect to the matter. It also enclosed a copy of the counter-signed Deed of Release which had been sent to Mr Baker by the solicitor for the Salvation Army. There is nothing in the contents of that letter summarising the entirety of the work which had been done for the plaintiff which is inconsistent with anything that I have referred to above. Clearly, that letter was prepared on the basis of documents in the file, including the file-notes, which Mr Baker regarded as accurate.

Deed of Release

1. [88]

   The Deed of Release was signed by the plaintiff on 5 November 2014, in the presence of Senior Constable Michael Franks at the Deception Bay Police Station. Subsequently, it was signed under seal by each of the Salvation Army Trusts which were a party to the Deed.

2. [89]

   The Deed after the signatures of the Salvation Army entities were added was then dated 13 November 2014.

3. [90]

   The Recitals were as follows:

4. [91]

   Clause 1.1 of the Deed recorded that the Salvation Army agreed to pay to the plaintiff a total amount of $120,000.

5. [92]

   Clause 3 of the Deed recorded the extent of satisfaction. It is in this form:

6. [93]

   Clause 4.1 of the Deed recorded the agreement of the plaintiff to the fact that the payment was being made by the Salvation Army without any admission of liability in relation to the allegations.

7. [94]

   Clause 5 of the Deed recorded the mutual releases and discharges. Relevantly, it is in the following terms:

8. [95]

   Clause 6 of the Deed addressed the consequence of that release, namely that the Deed would be a bar to further action. It is the following form:

Plaintiff’s Submissions

1. [96]

   By his evidence, and in his submissions, the plaintiff raised the following matters upon which he relied to oppose the relief being sought by the Salvation Army.

2. [97]

   First, the plaintiff says that he found the meeting in Sydney on 25 September 2014 to be an emotionally upsetting meeting because it was held in a room which reminded him of his time at Bexley. He said that being there brought back significant and unpleasant memories from his past.

3. [98]

   Secondly, the plaintiff said that his solicitor either wrongly advised him that he would not succeed in a common law claim brought in this Court against the Salvation Army, or else that statement, if correct, put undue pressure upon him to enter into the settlement agreement. That pressure came about indirectly, it seems, because the plaintiff said that he did not think that he had any option other than to settle his claim and “… get the money or I’ll get nothing”.

4. [99]

   Thirdly, the plaintiff said that he did not understand that when he signed the Deed of Release it brought to an end all claims which he had against the Salvation Army arising out of his time at Bexley.

Submissions of the Salvation Army

1. [100]

   The Salvation Army submitted that as a matter of fact the Court should find that the plaintiff, contrary to his evidence, read carefully through all of the settlement documents which were sent to him and then received legal advice from Mr Baker as to the contents, and effect, of the Deed of Release. Consequently, it submitted that the plaintiff had a clear understanding of the Deed of Release and knew that he was giving up any further claims against the Salvation Army upon payment of the agreed compensation.

2. [101]

   The Salvation Army further submitted that the plaintiff had not in his evidence, or otherwise, identified any mistake as to the effect of the Deed of Release. It further submitted that even if such a unilateral mistake had been identified, the evidence did not demonstrate that the Salvation Army was aware of any circumstance that showed that the plaintiff was under any mistake nor that in any way the Salvation Army sought to take advantage of such a mistake.

3. [102]

   Finally, it was submitted by the Salvation Army that contrary to the plaintiff’s oral evidence, the evidence of Mr Baker showed that the plaintiff voluntarily entered into the agreement to resolve his claim, including signing the Deed of Release because he wanted to bring matters to finality, resolve his claim, avoid litigation and ameliorate his financial position.

4. [103]

   In summary, it submitted that the Deed is plain in its terms, the plaintiff knew and understood the Deed, that the terms of the settlement were not nominal or derisory, and that it is entitled to have judgment in its favour on the proceedings.

Discernment

1. [104]

   The meeting which occurred in Sydney on 25 September 2014, was, I accept, an upsetting and emotional experience for the plaintiff. His emotions were undoubtedly exacerbated by the nature of the room in which the meeting was held. However, this was not something which on the evidence the Salvation Army intended. On the contrary, it seems clear that the Salvation Army saw the meeting as an opportunity to listen to the plaintiff’s account of what occurred and the consequences which he suffered, and to proffer a sincere apology. I am satisfied that is what occurred and, as recorded by Mr Baker at [47], that the plaintiff just wanted to get out of there.

2. [105]

   This meeting occurred about six weeks before the Deed of Release and other documents were signed. Three weeks after the meeting, the plaintiff spoke with Mr Baker and then, prior to the Deed being signed, on seven further occasions. These discussions occurred over the telephone. Each of those discussions centred upon settlement of the plaintiff’s claim against the Salvation Army. As is apparent, the initial discussions were about the first offer from the Salvation Army and its adequacy. The plaintiff told Mr Baker that he wanted to accept it. Mr Baker advised him not to rush his decision, await the medico-legal report and suggested making a counter-offer. This was prudent advice.

3. [106]

   Ultimately, the plaintiff did not attend the medico-legal appointment and, consequently, no report was forthcoming. He told Mr Baker that he did not wish to attend the appointment because he preferred to resolve the matter (“closure”) rather than obtain the better offer (“It is not all about the money”). That decision had been reached by the plaintiff after discussions with his wife. The use by the plaintiff of the word “closure” made it plain that at that stage, his intentions were to finalise his claims upon the Salvation Army and to move on with his life. Whilst, at this stage, the legal terminology that was included in the Deed of Release was not discussed between Mr Baker and the plaintiff, it is clear from the evidence which I have accepted that the plaintiff’s intention was, and his understanding was, that acceptance of the offer which was made would put an end to his claim against the Salvation Army with respect to his time at Bexley.

4. [107]

   Mr Baker’s advice to make a counter-offer to the Salvation Army in the sum of $120,000 was accepted by the plaintiff, who then instructed Mr Baker to proceed with putting that counter-offer.

5. [108]

   This occurred on 21 October 2014. I am satisfied that at that time, the plaintiff well understood what was happening. The Salvation Army had offered him a sum by way of compensation. Initially, he wanted to accept it, but instructed his solicitor to ask for more money – one third more than the initial offer.

6. [109]

   It was the plaintiff’s counter-offer which the Salvation Army accepted. There was no pressure placed on the plaintiff at that time by the Salvation Army. All of the Salvation Army’s dealings were conducted with the plaintiff’s solicitor, who was clearly acting in the plaintiff’s best interests. He dissuaded the plaintiff from acting too hastily and suggested attempting to obtain more money for him.

7. [110]

   I am well satisfied that when the plaintiff was told that his counter-offer had been accepted he was very happy and that he expressed his satisfaction with the actions of his solicitor. He made no complaint that he was under any pressure at all.

8. [111]

   The documents which were sent to the plaintiff were read by him. Whilst, at that time, he may have had some difficulty in writing, there is no reason to doubt that the plaintiff was capable of reading and understanding them. I am satisfied from the evidence of Mr Baker – see [82] above – that the Deed was carefully explained to, and understood by, the plaintiff. I accept that Mr Baker took great care to explain the meaning, and hence the importance of the release which was being given. I accept Mr Baker’s evidence that the plaintiff had the understanding as set out in his file note at [82].

9. [112]

   In addition, any conclusion about the capacity of the plaintiff to understand the documents, including the Deed of Release, is fortified by what he told Mr Baker he was proposing to do with the settlement proceeds – namely, to use them to reduce his indebtedness to the bank with respect to his mortgage and any outstanding payments. His plans were not irrational and did not reflect any sense that the plaintiff could or would waste the money and return to claim more in the future.

10. [113]

    On the basis of the following factual findings, I reject the submission that the plaintiff’s entry into the Deed was in any way the result of any duress being placed upon him by his solicitor in any way:

    1. (1)

       the fact that the plaintiff was physically distant from his solicitor at the time he signed the various settlement documents;

    2. (2)

       the fact that he received thorough and, I am satisfied, careful advice about his legal position from the solicitor acting for him;

    3. (3)

       the fact that he had the opportunity to discuss his decision with his wife after the first offer was made;

    4. (4)

       the fact that that he was not prepared to attend a psychiatrist to obtain a medico-legal report to support his case for the possibility of obtaining an enhanced settlement figure;

    5. (5)

       the fact that he had a rational purpose for the use of the money entirely unrelated to the claim;

    6. (6)

       the fact that the Deed of Release was carefully explained to him and he understood what he was signing;

    7. (7)

       that a settlement represented “closure” for him and his adverse experiences at the hands of the Salvation Army officers at Bexley; and

    8. (8)

       the lack of any expression of concern to his solicitor at the time of the negotiations about feeling that he was under duress.

11. [114]

    The mere fact that at the time the settlement occurred, he had no other readily available legal option in the opinion of his solicitor does not constitute duress. I am satisfied that the advice he received set out his alternatives. He could have chosen anyone of them: to do nothing; to litigate with a significant risk of failure and liability for legal costs; or to enter into settlement negotiations with the Salvation Army. The alternative that he chose was, both from a financial perspective and a personal emotional perspective, the only sensible one. There was no element of duress in that decision.

12. [115]

    The plaintiff has not established that he was mistaken in any way about the settlement. On the contrary, the contemporaneous file‑notes establish beyond any doubt that he knew exactly what was happening and the consequences of his decision.

13. [116]

    Finally, I am satisfied that the adverse emotional impact of the September 2014 meeting had no influence on the plaintiff’s decision-making when he instructed his solicitor to make the counter-offer on 21 October 2014. I am similarly satisfied it had no effect upon him at the time he signed the Deed of Release and other settlement documents. I am satisfied of these conclusions because of the passage of time between the meeting and these actions by the plaintiff, the number of occasions he was able to speak with Mr Baker after that meeting and before the signing the Deed, and because of the absence of any reference by the plaintiff to the effect of this meeting on his discussions with his solicitor.

Conclusion

1. [117]

   I am satisfied that the plaintiff entered into the Deed of Release having received advice from his solicitor which was thorough and careful. He understood the terms of the Deed and its meaning. He knew that he was giving up the right to make any further claims for compensation from the Salvation Army for his time at Bexley.

2. [118]

   There have been no circumstances established which would suggest that there was any basis to prevent the Salvation Army relying on the Deed for its full force and effect. It is just and reasonable for the plaintiff to be held to the terms of the freely negotiated, and well understood, contract into which he entered, and for which he received valuable recompense.

3. [119]

   The plaintiff’s claim against the Salvation Army must be dismissed.

4. [120]

   The Court makes the following orders:

   1. (1)

      The Separate Questions be answered as follows:

   2. (2)

      Judgment for the defendant against the plaintiff. The proceedings are otherwise dismissed.

   3. (3)

      Plaintiff to pay the costs of the defendant of the proceedings including the separate questions.