AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle

1. [1]

   AA seeks damages, including exemplary and aggravated damages, for personal injury which he claims he suffered after he was physically and sexually assaulted by a parish priest, Father Ronald Pickin, at St Patrick’s Catholic Church, Wallsend in 1969, when he was a teenager. He also seeks damages for resulting economic and other losses.

2. [2]

   The claimed abuse was not admitted by the Diocese, which also denied that it had the claimed duty of care. It also does not admit any breach or the claimed damages. Its claimed vicarious liability for the abuse, if it occurred, was also denied, Father Pickin not being an employee and, on its case, it not having placed him in a position akin to employment, or in any position of power, control or authority over AA. In closing submissions, however, the Diocese’s position was that the abuse did not take place.

3. [3]

   In 1969 AA was a student in 2nd form, now year 8, at Wallsend High School, where he attended the class in which Father Pickin that year first gave students instruction in the Catholic faith. There is no issue that on some Friday nights he invited AA and his friend Mr Perry, as well perhaps, on some occasions other boys, to the presbytery where Father Pickin lived alone. But in which school year this occurred was not agreed.

4. [4]

   It was also agreed that during those visits Father Pickin gave the boys beer and cigarettes and allowed them to play on an old poker machine which he had there and that there were no other adults ever present.

5. [5]

   AA claims that on some six of those occasions he became drunk to the point that he fell unconscious or blacked out in the bedroom where the poker machine was kept. When he came to, he found Father Pickin forcing him to perform oral sex. He does not claim that Mr Perry was with them in that room on any of those occasions, or that he knew about the assaults. He remembers Father Pickin telling him that Mr Perry was not there because he had sent him to the shops to buy cigarettes, or that he had gone home.

6. [6]

   Mr Perry denied ever leaving AA alone at the presbytery with Father Pickin. There is no suggestion that he ever witnessed any assault or that AA told him about the assaults, although his oral evidence was that he had tried to talk to Mr Perry, but he was not interested.

7. [7]

   The hearing was expedited and evidence was taken from AA in June 2024 by an examiner, Mr Kalfas SC, because he is dying of motor neurone disease. AA was also further cross examined in Newcastle on the second day of the hearing, having served a third statement which he made after Mr Perry’s statement was served, following his first cross examination.

8. [8]

   No evidence could be called from Father Pickin, who died some years ago, but evidence was called from Mr Perry and a number of other witnesses.

Conclusion

1. [9]

   For the reasons which follow I have concluded that AA was sexually assaulted by Father Pickin; that the Diocese did owe him a duty of care which it breached; that it was vicariously liable for those assaults; and that while he is entitled to damages for the harm which he suffered as a result of the assaults, they cannot be assessed on the basis which he claimed.

Issues

1. [10]

   The parties agreed a number of matters:

2. [11]

   What remained in issue was identified to be:

3. [12]

   There were also issues at trial about the admissibility of the opinion evidence given by Father Dillon; the privilege the Diocese claimed in a draft of Mr Perry’s statement; and the admissibility of an unredacted version of a police Computerised Operational Policing System (COPS) record which had been served as part of the tendency notice AA had served.

4. [13]

   I concluded that Father Dillon’s evidence was admissible, Mr Perry’s draft statement was privileged and the unredacted COPs record, only sought to be tendered during the course of final submissions, could not fairly be admitted.

5. [14]

   Reasons for those conclusions follow.

The opinion evidence

1. [15]

   There was no issue that Father Dillon had the expertise required by s 79 of the Evidence Act 1995 (NSW) to express opinions about the matters dealt with in his reports. What was in issue was whether he had there disclosed, in the way it was argued was required, the basis of his opinions. The single objection taken to all aspects of his reports being that “the basis for the opinions expressed are not specified or not stated”.

2. [16]

   The opinion rule provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s 76(1). Section 79(1) provides an exception to the opinion rule “if a person has specialised knowledge based on the person’s training, study or experience”, which permits the person to give evidence of an opinion “that is wholly or substantially based on that knowledge”.

3. [17]

   To be admissible under s 79(1), the evidence must thus satisfy two criteria. First, the witness must have specialised knowledge based on his or her training, study or experience. Secondly, the witness’ opinion must be wholly or substantially based on that knowledge: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [32]; Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 at [209].

4. [18]

   The requirement that the opinion be based wholly or substantially on specialised knowledge is thus “an explicit precondition of admissibility” which must be established by the party tendering the evidence in examination in chief: Dasreef at [98]. The links between the expert’s training, study and experience and the opinion “should be spelt out unless they are apparent from the nature of the specialised knowledge”: Dasreef at [99].

5. [19]

   In some cases, that an expert is expressing an opinion which is based on his or her specialised knowledge requires little explicit articulation or amplification, once the witness has described his or her qualifications and experience, given the subject matter of the opinion expressed: Dasreef at [37].

6. [20]

   I was satisfied that the s 79 requirements had been met in Father Dillon’s case, given that he was expressing opinions about his experiences of the matters about which he was asked, his report disclosing as it did that his answers were based on his specialised knowledge training and experience in respect of those matters, rather than on any assumptions which he had made.

7. [21]

   In his first report, Father Dillon explained his unchallenged 55 unbroken years of pastoral work in Catholic Church Ministry, almost all of it in a parish setting, which he believed had afforded him substantial ‘hands-on’ knowledge, experience and awareness of Catholic Church practices and customs in Australia. His CV outlined his philosophical and theological training, as well as his experience of parish life and other church ministries.

8. [22]

   Father Dillon attended Catholic schools to his matriculation in 1961. He attended the Corpus Christi Seminary Werribee and Glen Waverley from 1962 to 1969 and was ordained to the priesthood in June 1969. He was then an assistant priest at a number of parishes from 1970 to 1983 and the administrator of another parish in 1984. From 1985 until 2022, once retired from fulltime parish duties, he was a parish priest for three different parishes and still now assists regularly at a number of other parishes.

9. [23]

   Father Dillon has also held a number of other Church positions since 1974. He was for some years the Director of Vocations for the Archdiocese of Melbourne and the Episcopal Vicar for Media of that Archdiocese. In 2013 he was the Founder and Chair of “Lifeboat Geelong” which provides practical, personal and spiritual support for child abuse survivors. He was the Co-Founder and a Board Member of crisis accommodation for the homeless from 2013 to 2017. Over the years he has also been a radio media contributor and a weekly weekend columnist for a newspaper.

10. [24]

    Father Dillon explained his extensive involvement over the past thirty years with people who had been sexually assaulted as minors by priests, religious seminarians and others operating under the authority of the Church. It was not challenged that while he was not a canon lawyer, he was “very familiar with the laws, rules and customs of the Catholic Church, especially in its management and operation of Parishes”.

11. [25]

    Father Dillon’s reports were structured by him responding to questions posed. The objection to his reports was explained by way of example, by reference to the answer given to question (b):

12. [26]

    Father Dillon’s answer was:

13. [27]

    The deficiency of the report so structured was argued to be that the basis for this and other answers Father Dillon gave about the Catholic Church’s position about the matters raised was “not specified or not stated”.

14. [28]

    In other questions, Father Dillon was also asked about his recollections, knowledge or opinions about the position which existed in the 1960’s. For example, he said that parish priests were then “under the authority and direction of the Diocesan Bishop”: question (f). Other questions went to his knowledge about matters such as whether priests ministering to Catholic children in State schools were restricted from having interactions with those children beyond such instruction: question (h).

15. [29]

    It was argued that Father Dillon’s answers to the questions might be right or wrong, but his opinions were not admissible, the basis for them not having been disclosed in the necessary way. The result was argued to be that because Father Dillon answered the questions posed without specification of the facts or assumptions he relied on, his answers were impermissibly “bare ipse dixit”: Dasreef at [93].

16. [30]

    I was satisfied that this submission could not be accepted.

17. [31]

    This observation in Dasreef came from the much-cited words of Lord Strachan in Davie v Magistrates of Edinburgh 1953 SC 34 at 39-40:

18. [32]

    Father Dillon was not giving scientific evidence. It was apparent from his answers that they did not rely on assumptions which he had made and he was not simply giving an opinion on the issue in controversy.

19. [33]

    What Father Dillon was asked about in question (b) and other questions was his experiences of the Church’s teachings in the 1960s, as well as their practical implementation and how other of its practices were then implemented. Thus in his answer to question (b), he explained his experience of the promulgation of Canon 209 in the 1960s.

20. [34]

    His training and experience qualified Father Dillon to give the opinion which he expressed by that answer. He gave it by reference to the various forms of communion by which, in his experience, it was then expected that members of the Catholic laity would maintain their connection with the Church.

21. [35]

    In other answers Father Dillon explained his experience of the implementation of Church teachings in relation to a range of other matters in the 1960s, including in State schools, and the resulting expectations of parish priests. He was also asked about how the Church then managed the use of its properties in a Diocese.

22. [36]

    In some of his answers Father Dillon explained how certain Church practices in the 1960s were affected by its teachings, after the Second Vatican Council 1962-65. For example in question (f). He also explained some of the problems which he had observed having resulted, including in relation to complaints and allegations made against priests, brothers and nuns. He also gave personal examples, to explain some of his answers, including in relation to the use of Church property.

23. [37]

    Father Dillon’s answers to the questions posed could no doubt have been better expressed. But that there was any further basis for the answers which he gave which he had to divulge, in order for his reports to be admissible, could not be accepted.

24. [38]

    I was satisfied that Father Dillon’s opinions, based as they plainly were on his own experiences, training and knowledge, required little further explicit articulation or amplification, given his description of those qualifications, his experiences and the subject matters about which he was asked to provide his opinions.

25. [39]

    Father Dillon was only shortly cross examined and the Diocese did not call any evidence to rebut his opinions. I am satisfied that his evidence established that in the 1960s the Church had few written rules and regulations about the conduct of parish priests or their use of presbytery premises and that parish priests were given little training in relation to their use, or about their interaction there with children. The eight years of seminary training Father Dillon described was directed towards academic preparation in matters such as theology, philosophy, scripture and canon law, rather than parish life and involvement, with the result that young priests learnt as they went, effectively while they were “on the job”.

26. [40]

    There is no evidence of any practice or requirement that parish priests not invite young people such as AA and Mr Perry to the presbyteries, even when they lived there alone. That being left to individual priests who were under the control of the Bishop. It should be noted that the Bishop having exercised such control in a variety of ways in Father Pickin’s case was supported by a personnel file.

Mr Perry’s draft statement

1. [41]

   There was no issue that until Mr Perry’s statement was served the draft statement in issue was privileged, containing as it did confidential written communications between the Diocese’s lawyers and him. Those communications having been made for the dominant purpose of the Diocese being provided with professional legal services relating to these proceedings: s 119 Evidence Act. Namely, in respect of the evidence which Mr Perry might be able to give about matters in issue in the proceedings.

2. [42]

   AA’s case was that this privilege was lost once Mr Perry’s final statement was served in compliance with the Court’s orders, s122(5)(a)(iii) of the Evidence Act then applying. Section 122 relevantly provides:

3. [43]

   There was no authority cited in which it has been held that service of a final statement in accordance with a Court’s orders results in privilege in a draft statement which has not been disclosed, being waived.

4. [44]

   To establish the claimed loss of privilege in such a draft, reliance was placed on what was decided in Buzzle Operations Pty Ltd v Apple Computer Australia Pty Ltd (2009) 74 NSWLR 469; [2009] NSWSC 225, especially at [30], and New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258.

5. [45]

   In Buzzle, the privilege in issue concerned statements which had been served, not drafts of such statements. It was accepted that privilege might attach to drafts, but that it did not attach to final statements once served, following Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547; [2009] FCAFC 32: at [11]. White J referred at [19] of Buzzle to what he had decided in New Cap at [28-29], observing:

6. [46]

   In New Cap, it was privilege in the draft of an expert’s report which was in issue. White J did not accept that service of the final report resulted in privilege in draft reports and prior communications between the plaintiffs’ solicitors and the expert being waived: at [42]-[44] ff.

7. [47]

   In my view, consistently with White J’s approach, privilege in a draft statement in which a legal adviser communicates with a witness about the evidence the witness may be able to give about the matters dealt with in the statement, is also not waived by later service of the final statement, in accordance with a Court’s orders.

8. [48]

   Consistently with s 122(5)(a)(iii), serving a witness’ final statement in accordance with such orders may result in disclosure of the substance of only part of what was contained in an earlier draft statement. For example, the final statement will not disclose earlier confidential communications between the lawyer and the witness about what his or her final statement might deal with, which was communicated in the earlier draft. Service of such a final statement thus will also not involve the client or party acting in a manner which is inconsistent with an objection to adducing the draft statement being maintained, if the confidential communications between the party’s lawyer and the client have not been disclosed by service of the final statement.

9. [49]

   In the result I was satisfied that it had to be concluded that privilege in Mr Perry’s draft statement had not been waived by service of his final statement, given the confidential communications in the draft which had not been disclosed by service of his final statement.

The tendency evidence

1. [50]

   AA served two tendency notices, relying on s 97 of the Evidence Act. The first was amended at the hearing, without objection. It specified the claimed tendency to be:

2. [51]

   This notice identified the evidence to which it was directed to be paragraphs 14, 15 and 16 of AA’s 15 March 2024 statement; paragraphs 9 and 18 of Mr Perry’s July 2024 statement; evidence given in criminal proceedings in the District Court in 2015 in the prosecution of Father John Denham; a complaint made to police by “a person” of sexual abuse by Father Pickin between 1983 and 1987 when the complainant was a child; and a complaint to police by “a person” of sexual abuse by Father Pickin between 1979 and 1991, when that complainant was a child.

3. [52]

   The admissibility as tendency evidence of AA and Mr Perry’s statements was in issue.

4. [53]

   Of the other documents notified, it was only a COPS record, which had been redacted, which was sought to be tendered at the hearing. That tender was finally not pressed and attempts to obtain an unredacted copy of the record were pursued. As I have explained, the objection to the late tender of the unredacted document, served only during the course of submissions, succeeded.

5. [54]

   The second tendency notice specified the claimed tendency to be:

6. [55]

   This notice was supported by paragraphs 7 to 10 of the July 2024 statement of BB and paragraphs 8 to 12 and 25 of the July 2024 statement of Mr McClung. Those statements were received provisionally when BB and Mr McClung were called, subject to resolution of the arguments about the tendency notices. A direction under s100 of the Evidence Act was also made at the hearing in respect of BB’s statement.

7. [56]

   The Diocese’s position was that the evidence was inadmissible as tendency evidence because it did not have “significant probative value”, but the truthfulness of the evidence which Mr McClung and BB gave was not challenged. In Mr McClung’s case of events before AA was assaulted and in BB’s case of events which occurred afterwards. His evidence being supported by records kept by the Diocese of his 2021 complaints.

8. [57]

   Section 97 of the Evidence Act relevantly provides:

9. [58]

   “Probative value” is defined in the Dictionary to the Evidence Act to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. “Significant probative value” is not defined. Section 97A applies in criminal proceedings. It has the effect that tendency evidence about the sexual interest a defendant has or had in children, or tendency evidence about the defendant acting on a sexual interest the defendant has or had in children, is presumed to have significant probative value: s 97A(2). That does not apply in these civil proceedings.

10. [59]

    The admissibility of the proposed tendency evidence must be determined by reference to its capability to rationally affect the probability of the existence of a fact in issue: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [38]. For admissibility purposes, in the assessment of probative value, the court must take the evidence at its highest: at [47].

11. [60]

    So approaching the disputed evidence, I am satisfied that it is admissible as tendency evidence, it having the capacity to affect the assessment of the probability of the existence of a fact in issue, namely, whether AA was assaulted by Father Pickin as he claims. I am also satisfied that it is of significant probative value, assessing it in the way explained in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [40]-[42].

12. [61]

    That is, by considering whether the disputed evidence “should make more likely, to a significant extent, the facts that make up the elements of the offence charge”. The only qualification being that it is not necessary that the disputed evidence has this effect by itself. “It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.” That being because “[l]ogic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded.”: Hughes at [40].

13. [62]

    This requires two interrelated but separate matters to be considered. First, the extent to which the evidence supports the tendency and the second matter, the extent to which the tendency makes more likely the facts making up the charged offence. There being “a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged”: at [41].

14. [63]

    In The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40, the Court decided to speak with one voice about the admissibility of tendency evidence in single complainant sexual offences cases: at [47]. It observed at [49] that “it has long been the law that a complainant’s evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant’s evidence of the charged acts”.

15. [64]

    It was accepted that relationship evidence which shows an accused’s sexual interest in a complainant is relevant and has probative force. “It may reveal a tendency in the accused, sometimes described as a motive.” Where it shows “that the accused has carried out sexual acts upon the complainant, or undertaken acts preparatory to them, the tendency or propensity on the part of the accused may be taken as confirmed”: at [49] quoting HML v The Queen (2008) CLR 334; [2008] HCA 16 at [492]-[493].

16. [65]

    The admissibility of evidence of uncharged acts rests on the very high probative value of that kind of evidence, which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person: at [51].

17. [66]

    Proof of an accused’s commission of a sexual offence against a complainant on one occasion thus makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, “at least where the two are not too far separated in point of time”: at [50]. Where the accused is charged with a number of counts of generally similar sexual offences against a single complainant “evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act”: at [50].

18. [67]

    Since enactment of the Evidence Act such evidence is also admissible under s 97, it being of the required “very high probative value”: at [52].

19. [68]

    In this case the disputed evidence concerned not only Father Pickin’s similar uncharged acts when he forced AA to have oral sex on a number of occasions, but also the surrounding conduct including having repeatedly invited him and Mr Perry to the presbytery where he lived alone; having there given AA sufficient beer to cause him to pass out or become unconscious in a bedroom; having invited him to play a poker machine kept under some clothes near that room; and being allowed to keep his winnings. There was no issue about the surrounding conduct.

20. [69]

    In TL v The King (2022) 275 CLR 83; [2022] HCA 35 the Court explained at [28] that assessment of probative value of evidence requires that “the possible use to which the evidence might be put be taken at its highest”. That “assumes that the evidence is reliable and credible”, an assumption that “will only be displaced where the evidence could not be accepted by a rational jury”. This requires consideration of the evidence by itself and “having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence”. For evidence to have “significant probative value”, it “must be ‘important’ or ‘of consequence’ to the assessment of the probability of the existence of a fact in issue.”

21. [70]

    It follows that all of the disputed evidence had to be assessed on the basis of the assumption that it would be accepted, including AA’s memory of the assaults.

22. [71]

    In Burns-Dederer v R [2023] NSWCCA 191 it was explained (at [51]) that in the assessment of the probative value of evidence “two interrelated but separate questions arise:

23. [72]

    I am satisfied that so approaching the disputed evidence Father Pickin’s repeated, similar assaults on AA and the evidence of his sexual interest in other teenagers on which he also acted, does help establish the notified tendencies. Further, those tendencies make it more likely that the assaults AA remembers occurred, given the pattern of Father Pickin’s conduct towards him, the circumstances in which each of those assaults occurred and how he had also acted on his sexual interest towards BB and Mr McClung.

24. [73]

    When there are multiple complainants there will be a question about whether evidence that an accused has committed a sexual offence against one of them, is significantly probative of the accused having committed a sexual offence against another. The logic of probability reasoning dictating that for evidence of offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together: Bauer at [58].

25. [74]

    The mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. But if there is some common feature of or about the offending, that “may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true”: at [58].

26. [75]

    In other cases offences alleged to have been committed against some groups of complainants may in significant respects, be different in kind and circumstance from the sexual offences alleged to have been committed against each other group of complainants: Bauer at [59].

27. [76]

    The issue then being how much, if any, of each complainant’s evidence of the sexual offences and uncharged acts alleged to have been committed against that complainant is admissible as tendency evidence in proof of the sexual offences alleged to have been committed against the other complainants.

28. [77]

    In Hughes, “taken as a whole, the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection”. The significance of that common feature leading to the conclusion that evidence of each alleged sexual offence and uncharged act had significant probative value in proof of each other charged offence: Bauer at [59], citing Hughes at [57]-[60].

29. [78]

    Like in Hughes and Bauer, considering all these matters I am also satisfied that the disputed evidence is admissible as tendency evidence.

30. [79]

    The evidence of both BB and Mr McClung does support the existence of the notified tendencies and also makes it more likely that the sexual abuse which AA described Father Pickin having inflicted on him, also occurred. As does AA’s evidence about Father Pickin repeatedly assaulting him at the presbytery, having arranged the opportunity to do so as he did.

31. [80]

    There were differences between the assaults which BB and Mr McClung each described Father Pickin committing on them and those AA described. But still they did have common features which linked them together.

32. [81]

    AA described undoubtedly more serious assaults involving oral sex, while BB and Mr McClung described Father Pickin engaging in repeated light fondling of their genitals. But each of them said that the assaults occurred when Father Pickin obtained access to them at church premises while they were teenagers, where there were no other adults present.

33. [82]

    In Mr McClung’s case in 1965, the abuse occurring when he was aged 16 or 17, while Father Pickin was an assistant priest at St Columba’s Church, where he attended on Saturday nights and before some Easter and Christmas services, to prepare and dress rehearse for services in which Father Pickin involved him in delivering lessons. These assaults occurred in both the vestry and main Church area.

34. [83]

    In AA’s case in 1968, the abuse occurring when he went with Mr Perry and on occasions other boys to the Wingham Church presbytery on Friday nights after dinner, while he was at high school aged 13. The assaults occurring when they were alone in a room off a bedroom.

35. [84]

    In BB’s case in the 1970s, the abuse occurring when he was around 11 or 12, when he had sleepovers at Wingham Presbytery on a Saturday night with others, as well as when he went on holidays with Father Pickin.

36. [85]

    This evidence accords with Father Pickin having a sexual interest in teenage boys on which he acted when he assaulted each of them, he having arranged the opportunities which gave him access to the three boys in the absence of other adults.

37. [86]

    I am also satisfied that all the disputed evidence did have significant probative value in proof of the sexual assaults AA claims he suffered at Father Pickin’s hands, in supporting the notified tendencies and making it more likely that he had repeatedly assaulted AA, as he remembers. The disputed evidence was thus admissible under s 97 of the Evidence Act.

The COPS reports

1. [87]

   That this conclusion was not available in relation to the redacted COPS report originally served was accepted and its tender was finally not pressed.

2. [88]

   That document had been provided in response to a subpoena. I concluded that the unredacted report having only been obtained and sought to be tendered during the closing stages of the hearing, did not permit its receipt. That was because, contrary to what the statutory regime required, in the circumstances the Diocese had not been given any fair opportunity to consider or meet what was only then revealed about all that this document disclosed about other reported offending by Father Pickin.

Was AA sexually abused by Father Pickin?

1. [89]

   There was no issue that if AA was sexually abused as he claims, that amounted to a battery. For the following reasons I am satisfied that it must be concluded that he was sexually assaulted when Father Pickin forced AA to engage in oral sex in the way he described, notwithstanding the problems raised by the evidence, which reflect the passage of time and the way in which memory works.

2. [90]

   The only three people who could have given evidence about the claimed abuse were AA, Mr Perry and Father Pickin. Father Pickin died in 2015 and there is no suggestion that Mr Perry saw or was ever told about the abuse at the time.

3. [91]

   On AA’s evidence it was only in 2024 that he revealed Father Pickin’s abuse to his brother and his son, having never revealed it to Mr Perry, his parents or even his wife, before her death. Although in re-examination AA did suggest that he had tried to discuss it with Mr Perry, who was not interested. That does not accord with Mr Perry’s recollection.

4. [92]

   AA was cross examined on the basis that his evidence about the assaults was not true. The credibility and reliability of his evidence was thus in issue, as was that of Mr Perry.

5. [93]

   While there was a question of when they met and became friends, on AA’s evidence at high school and on Mr Perry’s earlier, when they played soccer together at a time when they attended different primary schools, there was no question they were close friends at the time of the assaults. Or that they grew apart afterwards and then only had intermittent contact over the years. There was also a question about when they had most recently met.

6. [94]

   There was no reason to doubt Mr Perry’s evidence about this, which AA also accepted, but it does not follow that the differences in their evidence must lead to the rejection of AA’s evidence about the assaults.

7. [95]

   AA left school in year 10 and had a difficult life afterwards, while Mr Perry completed school and became a police officer. Mr Perry only became aware of the allegations about the assaults after AA brought these proceedings.

8. [96]

   It was not suggested that AA’s delay, long after both the 2017 Final Report of the Royal Commission into the Institutional Responses to Child Sexual Abuse and the 2014 Cunneen Report in relation to the Special Commission of Inquiry into allegations raised about police handling of abuse by clergy in the Roman Catholic Church in the Hunter Region, adversely affected the credibility of his evidence.

9. [97]

   That accords with what was discussed in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [75]. AA’s claim now not being precluded, either absolutely or contingently, by a limitation period or a limitation period subject to discretionary extension, no occasion arose for an explanation for any delay in AA bringing these proceedings. But he did give evidence about how it was that he only so recently disclosed Father Pickin’s abuse for the first time.

10. [98]

    As Cavanagh J explained in SR v Trustees of the De La Salle Brothers [2023] NSWSC 66 (SR), such delay is now “a well-known and well-exposed pattern of behaviour which so many young men have endured, having regard to their feelings of guilt, shame and their fear of not being believed. That pattern of behaviour may continue, even when relationships develop”: at [124](2). That accords with AA’s evidence. But it does not preclude the possibility that his evidence was untrue or his memory inaccurate.

11. [99]

    The Diocese urged that it be concluded that AA’s evidence about the assaults was not plausible, given changes in his evidence and his answers in cross examination, about what happened during the course of the abuse and whether he blacked out or became unconscious, as well as other problems with his evidence, including its inconsistency with that of Mr Perry. I am finally not able to accept this.

12. [100]

    AA’s evidence was consistent both with his difficulty in revealing the abuse for very many years and not even having read Mr Perry’s statement, even though he had responded to it in the statement he later made and was cross examined about.

13. [101]

    For his part Mr Perry plainly found it difficult to credit that Father Pickin had assaulted AA, given how close he and AA then were; his presence at the presbytery at the time AA remembered being assaulted; he not having gone to the shops or home as Father Pickin told AA he had; and AA never having told him about the assaults, in order to warn him.

14. [102]

    This has to be considered in light of the shame and embarrassment AA described feeling about the assaults, as well as the high regard Mr Perry had for Father Pickin at the time and even now, and the breakdown of his relationship with AA. Mr Perry later developed a working relationship with Father Pickin while he was a police officer, Father Pickin having become a police chaplain. Father Pickin was also a family friend who Mr Perry continued to hold in the high esteem he explained, despite press reports which he had read about Father Pickin’s involvement in other child abuse.

15. [103]

    That explains Mr Perry’s response to the claimed assaults, given views which he no doubt genuinely held. But that does not preclude AA’s evidence about the assaults being accepted. Or require the conclusion that Mr Perry’s lapses in memory were understandable, while those of AA must be regarded as discrediting his evidence. Given the passage of time it is likely that neither has a perfect memory of all that they gave evidence about. Pertinently, AA may have been more affected by the beer that he drank at the presbytery at relevant times than Mr Perry appreciated and AA may not have been quite as greatly affected on all those occasions as he remembered.

16. [104]

    On Mr Perry’s evidence him were occasions when other boys were also present at the presbytery with he and AA. That accorded with AA’s earlier account to Dr Apler, but he did not remember others when he was cross examined.

17. [105]

    The presence of other boys did not necessarily make the assaults unlikely. That may rather explain how Father Pickin was able to be alone in the bedroom with AA, while Mr Perry remained with the other boys in the living area of the presbytery.

18. [106]

    The tendency evidence also supports AA’s case. But ultimately, it depends on AA’s evidence being accepted.

19. [107]

    The Diocese’s case was that it would be concluded that AA’s evidence about the assaults was untrue, his evidence having been unsatisfactory and demonstrably false in a number of other respects. With the result that his evidence could not be accepted as being credible and reliable and so not being capable of being accepted as establishing the claimed abuse.

20. [108]

    There were problems with AA’s evidence, it must be accepted, but still I have concluded that the Diocese’s submissions cannot be accepted.

21. [109]

    It is certainly difficult to prefer AA’s evidence about matters such as whether he had accompanied Mr Perry when he went into the nursing home where Father Pickin was living, shortly before his death, over that of Mr Perry.

22. [110]

    But I am not persuaded that accepting Mr Perry’s evidence about matters such as this, or what he remembered about the occasions, over 55 years ago, when AA claims he was assaulted, must lead to the rejection of his evidence about those assaults as untrue.

23. [111]

    Mr Perry’s evidence corroborated aspects of AA’s evidence and also helped establish that it was possible that Father Pickin took the opportunity to sexually abuse AA when he was at the presbytery, while he and Father Pickin were together out of Mr Perry’s sight.

24. [112]

    Mr Perry denied that he ever left AA alone at the presbytery, as Father Pickin told AA that Mr Perry had, having either gone to the shops to buy cigarettes or gone home. But on Mr Perry’s evidence in cross examination, it must be accepted that the assaults could have occurred while he remained in the living area of the presbytery talking to others and AA had gone into the bedroom to play the poker machine.

25. [113]

    Both AA and Mr Perry must have been affected by the beer Father Pickin gave them to drink on each of those occasions and this, as well as the passage of time, carried with it the possibility that Mr Perry did not accurately remember all that he gave evidence about. That was confirmed by his cross examination. Also necessary to take into account is that his attitude to the claimed assaults was affected both by the high regard in which he continued to hold Father Pickin and AA’s failure to have disclosed them to him at the time. Neither provide a proper basis for rejecting AA’s evidence, supported as it is by the tendency evidence.

26. [114]

    I am thus not satisfied that AA’s evidence about how he was assaulted by Father Pickin must necessarily be rejected as untrue. Or that Mr Perry’s evidence must lead to the conclusion that the assaults did not occur.

27. [115]

    There is no issue that the onus falls on AA to establish, on the balance of probabilities, that he was sexually abused by Father Pickin, in accordance with the requirements of s 140 of the Evidence Act.

28. [116]

    It requires regard to be had to the gravity of the matters AA alleges: Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 at [26]-[30]. That requires attention to be paid to what was decided in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34. Dixon J there observing that “In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.

29. [117]

    Those observations were applied in M v M (1988) 166 CLR 69 at 76-77; [1988] HCA 68, in the context of an allegation of sexual abuse. Their application in circumstances where such abuse, committed even 55 years ago, may now be pursued, raises obvious problems, given the results of the passage of such time. The Court must thus, 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].

30. [118]

    Account must also be taken of what is now understood about the way in which human memory works, the impact of trauma and how victims respond to it.

31. [119]

    In Bugmy v The Queen (2013) 249 CLR 37; [2013] HCA 37 the experience of growing up in an environment surrounded by alcohol abuse and violence had to be considered, there in the context of sentencing. The joint judgment of French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ noted that experiences such as these “may leave its mark on a person throughout life” and that a “background of that kind may compromise the person’s capacity to mature and to learn from experience”: at [43]. Further, that “the effects of profound childhood deprivation do not diminish with the passage of time”: at [44].

32. [120]

    On the evidence not only did AA’s mother die when he was aged 8, he was the victim of domestic violence at home, and from age 5 he was given wine to drink at every meal. This was consistent with Mr Perry’s evidence that when he went home with AA one night after they had left the presbytery where they had been drinking beer, AA’s father noticed that they had been drinking. The result when Mr Perry admitted this when questioned was that he was then forced by AA’s father to drink even more, to the point that he became drunk.

33. [121]

    In Watson v Foxman (1995) 49 NSWLR 315 at 319, McClelland CJ in Eq. observed that human memory is “fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time.” In this case that both AA and Mr Perry’s memory of what occurred at the presbytery was also likely to have been affected by the beer Father Pickin gave them to drink, also has to be taken into account.

34. [122]

    In JL v The King [2023] NSWCCA 99 Adamson JA (with whom Ierace and Sweeney JJ agreed) observed the Court’s ability to account for general experience, including “that it is not uncommon for victims to remember specific details about the assaults but not tangential details.”: at [96] quoting Reed v R [2006] NSWCCA 314 at [64] (Reed).

35. [123]

    Cross-examination of sexual assault complainants which proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail is thus rarely appropriate. Memory of surrounding detail having few, if any, implications for a person’s reliability about the central details of a traumatic event, given what was even then known about human memory: Reed at [64].

36. [124]

    In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, the Parliament’s legislative responses to the findings and recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, amendments to the Limitation Act 1969 (NSW) and the Civil Liability Act 2002 (NSW) introduced in order to reflect contemporary values, were considered. That was an appeal against the stay of proceedings in which another claim of historical sexual abuse during childhood had been pursued. In that case the alleged perpetrator had also died before any allegations had been made.

37. [125]

    The problems of a defendant meeting such allegations and the onus falling on the plaintiff to establish the sexual abuse claimed to have occurred very many years ago during childhood, thus had to be considered. Inevitably such a claim having to be decided on incomplete evidence, it being observed that circumstantial evidence is still evidence: at [67].

38. [126]

    It was accepted in GLJ, as part of the joint judgment of Kiefel CJ, Gageler and Jagot JJ, that in deciding issues of fact on the civil standard of proof, “the court is concerned not just with the question “what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision”: at [58] quoting Cross on Evidence, 13th ed (2021) at 47 [1215] and Ho v Powell (2001) 51 NSWLR 572 at 576; [2001] NSWCA 168 [14]-[16].

39. [127]

    It was also noted that a court is not bound to accept even uncontradicted evidence. It can be rejected for reasons including its inherent implausibility, its objective unlikelihood given other evidence, or the trier of fact not reaching the state of “actual persuasion” which is required before a fact may be found. What the evidence must give rise to “is a reasonable and definite inference” which enables a factual finding to be made; mere conjecture based on “conflicting inferences of equal degrees of probability” being insufficient: at [60] quoting Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5.

40. [128]

    Attention was also there drawn to what Dixon CJ said in Jones v Dunkel (1959) 101 CLR 298 at 305; [1959] HCA 8, that the law:

41. [129]

    Thus, a plaintiff’s uncontradicted evidence may not be accepted because “[i]t may be too vague or internally inconsistent or otherwise unconvincing to enable a positive inference to be drawn that it is more likely than not that” the sexual assaulted occurred: GLJ at [71].

42. [130]

    But it has been accepted that in a case of historical sexual abuse by a person in a position of authority happening many years ago, it is not necessary to make a finding about every particular act which the plaintiff recalls, or precisely when it occurred or in what circumstances it occurred: SR at [128].

43. [131]

    In this case it is sufficient for AA to establish that he was abused at the presbytery on a number of occasions when Father Pickin gave him enough beers to intoxicate him to the point that he blacked out or became unconscious, that having permitted Father Pickin to force AA to perform oral sex while they were out of Mr Perry’s sight, as he remembered.

44. [132]

    That AA might otherwise have resisted Father Pickin, may well be accepted, given his evidence about how he felt about the abuse which he suffered, which resulted in him not disclosing it to anyone for so many years.

45. [133]

    Given that limitation restrictions on the pursuit of such abuse have been removed, it must be accepted that the Legislature has acted to permit its pursuit despite the impact which the passage of time has had on the memories of those who are still able to give evidence about the claimed events. That has to be born in mind when such evidence is assessed.

46. [134]

    For the following reasons I am satisfied that AA’s evidence, that he was assaulted by Father Pickin on a number of occasions in the way he described, must be accepted, it not being too vague, internally inconsistent or unconvincing to permit it being accepted as truthful, despite Mr Perry’s evidence.

47. [135]

    Reaching the required conclusions depended on both what AA and Mr Perry agreed and disagreed about and how their evidence was led, as well as how the tendency evidence supported AA’s claims. Unusually, AA having made two statements about which he was initially examined when his evidence was taken on commission before the hearing and then making a further statement in response to Mr Perry’s statement, which led to his further cross examination at the hearing, before Mr Perry was called.

48. [136]

    Mr Perry gave evidence about surrounding circumstances, not the assaults themselves, he corroborating aspects of AA’s evidence about those circumstances and also helping to explain how the opportunity for the assaults could have arisen.

49. [137]

    What they agreed included:

50. [138]

    What AA and Mr Perry disagreed about included:

51. [139]

    What AA said in his first statement, which he amended when he was first called, included:

52. [140]

    When he was taken to this statement AA confirmed that he did not meet Father Pickin until the end of year 7, when he came there to introduce himself and he began teaching religion in year 8. That was in 1969.

53. [141]

    In his second statement AA described his Catholic Italian father having traditional values and having taught him to respect adults, particularly those in positions of authority such as priests and teachers. He was taught to believe that priests were representatives of God, holy men who lived good lives, who could be trusted, respected and obeyed without question. He said that Father Pickin was no different before the abuse and before that he would never have dared to question or disobey a priest. He also said:

54. [142]

    When he was first cross examined AA said that he did not think there was anyone else at the presbytery with them and that he did not know where Mr Perry was while he was being abused and he could not remember telling Dr Apler that Father Pickin invited one or two other boys to the presbytery,

55. [143]

    AA also described his feelings of disgust, anger and shame after the abuse, which he bottled up, despite having been manipulated, and losing his respect for priests and his religion. He resented people in authority, fought with his father and lost the good relationship he had with his brother. He mixed with boys who were trouble and skipped school often.

56. [144]

    AA could not recall how long into year 8 the visits began. He also mentioned that, before he had drunk beer at the presbytery, he had been given a small glass of wine to drink at every meal since age 5. At the presbytery he had been given 6 or 7 glasses of beer, enough to make him paralytically drunk.

57. [145]

    AA was not sure where Mr Perry was when he was assaulted in the bedroom. AA said that Father Pickin had told him he had gone to the shops and he did not remember Mr Perry coming back to the presbytery. But he also remembered himself being sent to the shops and returning to find Mr Perry and Father Pickin in the living room and not seeing anything untoward. Mr Perry denied this.

58. [146]

    AA also said that having drunk a great deal by the end of the night, he didn’t remember what happened and “the only time I remember anything was when he woke me or stirred me up”. He was then lying on the floor, not near the poker machine but where clothes were hanging and that he “was usually woken up with his dick in [his] mouth”.

59. [147]

    AA was not sure whether he had been unconscious or had blacked out, which he perceived to be different. At one point he said that he did not know if there had been oral sex performed before he lost consciousness, but he also said that the oral sex “happened when we were drinking, I can assure you”. He also said “[a]ll I remember is him standing over me”.

60. [148]

    I understand that by this evidence AA was saying that he did not voluntarily engage in sex with Father Pickin and would not have done so if he had not been so drunk. That was not challenged.

61. [149]

    It was put to AA that he did not have a clear memory of any sexual activity with Father Pickin, but he insisted that he did remember, even though he had been so drunk that he had been unconscious or had blacked out.

62. [150]

    Mr Perry’s statement was served after AA was first cross examined. There he denied ever leaving AA alone with Father Pickin at the presbytery or being sent to the shops while they were together at the presbytery. Nothing can finally turn on this, AA’s recollection being of where Father Pickin told him Mr Perry was.

63. [151]

    In cross examination Mr Perry accepted that it was possible that they were not always in the same room together while they were at the presbytery. But he said that he never witnessed any abuse and that AA never told him about being abused, even though they were then close friends.

64. [152]

    Mr Perry also said that nobody had informed him that AA’s evidentiary statements did not contain a statement that he had seen AA being abused. That put into context his dissatisfaction with having been mentioned in AA’s evidence.

65. [153]

    That AA’s memory of all that happened over 55 years ago is not clear must be accepted, but nor was Mr Perry’s. Mr Perry thought, for example, that Father Pickin had not begun teaching at their school until they were in form 3, which was 1970, but it was agreed that he commenced teaching there when they were in form 2, or year 8, in 1969.

66. [154]

    Such problems with recollections from so long ago are understandable. I am satisfied that AA’s evidence about when the visits occurred must be preferred. That is, in the middle of 1969.

67. [155]

    Mr Perry also remembered their visits to Father Pickin occurring when they were aged 15 or 16.

68. [156]

    AA was born in November 1955 and Mr Perry in August that year. The evidence did not place their visits to the presbytery at the beginning of the year, it being dark when they went there after their dinner at 6 pm.

69. [157]

    In 1969, at the beginning of year 8, they were thus still aged only 13, both turning 14 in August and November that year. It follows that they did not turn 15 until August and November 1970, when they were in year 9. That the visits did not occur that year or in year 10 must be accepted. Year 10 was in 1971, AA’s final year of school. It was not suggested to him that it was as late as that year, that they went to the presbytery. Their visits thus cannot have occurred when they were 16.

70. [158]

    It must be accepted that Mr Perry’s memory of when they visited the presbytery was not correct. In cross examination he said that he guessed that he was 15 the first time that he went to the presbytery “because it’s the best I could come up with, otherwise I don’t remember”. Despite this, soon afterwards when asked if in other parts of his evidence he had guessed his recollection, he said that “I haven’t guessed anything”. But that could not be accepted.

71. [159]

    What Mr Perry and AA have clear recollections of must also be considered. Mr Perry had a clear recollection of the night when he went to AA’s house with him after they left the presbytery, when his father forced Mr Perry to drink even more, to the point that he was drunk, he being given no choice but to drink more beer.

72. [160]

    It seems to me that Mr Perry retaining that memory of what was plainly a traumatic experience for him so many years ago, is as likely as AA retaining a memory of suffering the traumatic experiences of sexual abuse which he remembers waking to find Father Pickin inflicting on him, while they were at the presbytery together. Both no doubt being memorable experiences for boys of that age, in AA’s case, even more memorable than that which Mr Perry was able so vividly to describe.

73. [161]

    Mr Perry could not recall the layout of the presbytery, which AA could. Mr Perry said that he was not much interested in playing with the poker machine which AA liked to play. Mr Perry thus agreed that it was possible that there were times when AA might have gone to a different part of the presbytery, where he wasn’t present.

74. [162]

    That accorded with AA’s unchallenged evidence that the poker machine was kept covered by clothes in a dressing room adjacent to the bedroom. He played the machine in the bedroom, which was on the same level, off the main living area of the presbytery, where they drank beer and smoked. Father Pickin gave him coins to play the machine and he was allowed to keep his winnings. It was in that bedroom that he was assaulted.

75. [163]

    It follows that the evidence establishes that it was possible that, unbeknownst to Mr Perry, AA being more intoxicated than Mr Perry appreciated, Father Pickin assaulted him in the bedroom while he remained in the living area, as AA remembered.

76. [164]

    The evidence which finally led me to have the required persuasion that AA was assaulted as he claims was his insistence that the assault occurred on each occasion after he had drunk the 6 or 7 glasses of beer he was given, that causing him to fall unconscious or black out and wake, on the floor of the bedroom with, as he described, Father Pickin’s dick in his mouth and being forced to engage in oral sex. That this remained quite a vivid memory must be accepted.

77. [165]

    That the beer AA had drunk could have caused him to fall unconscious or black out, he having already drunk wine with dinner at home, must also be accepted. That a teenage boy experienced the feelings of shame and guilt which he described help explain why he did not disclose the assaults either to his close friend Mr Perry, or to his deeply religious Italian family and instead, simply stopped going to the presbytery. The tendency evidence also supports AA’s evidence about the oral sex he was forced to perform being accepted.

78. [166]

    I am unable to conclude that AA’s evidence about such assaults is inherently implausible; that they are objectively unlikely; or that his evidence does not have the capacity to permit a state of “actual persuasion” that he was assaulted as he claims to be arrived at, despite the surrounding matters about which Mr Perry and AA do not agree.

79. [167]

    The evidence does establish that there was opportunity for Father Pickin to have assaulted AA while they were out of Mr Perry’s sight, on the occasions AA went into the bedroom to play on the poker machine, especially given that on some occasions other boys were with them at the presbytery. Father Pickin allowing him to keep any winnings was, for AA, clearly an inducement for him to play the machine which Mr Perry was not interested in playing.

80. [168]

    It also follows that the abuse would thus not necessarily have come to Mr Perry’s attention, AA not having disclosed Father Pickin’s assaults and Mr Perry also having been affected by the beer he was given to drink and not having noticed what was happening. Father Dillon’s evidence about how little the community knew about the risks that priests could pose explains why the possibility of Father Pickin having assaulted AA is not one which would have then occurred to Mr Perry. Despite what later became known, still Mr Perry could not credit Father Pickin having assaulted AA. But that accorded with him acting on the tendencies which the evidence established he had.

81. [169]

    Mr Perry remaining in the living area of the presbytery with other boys drinking, smoking and talking while AA went to play the poker machine would have helped provide Father Pickin with an opportunity to assault AA, while he was out of sight, on which I am satisfied he acted.

82. [170]

    AA’s silence about the assaults was maintained even after the publication by the Newcastle Herald in January 2015 of a report about a judgment given by Syme J, in criminal proceedings brought against another priest in the Diocese, Father Denham. He had been convicted of a large number of offences against other young boys. The report included that her Honour had criticised Father Pickin in her judgment, observing that he had “denied being part of an “organised criminal activity” within the Church in the 1970s and 1980s that protected sadistic predator priest John Denham.”

83. [171]

    Even this report did not prompt AA to disclose his abuse to the Diocese, despite the very difficult life he had led. That had included drug taking and a period in prison for a possession offence, which he claimed in his further cross examination he had not committed, but for which he “took the rap”, for the woman who later became his wife.

84. [172]

    But this report also did not affect Mr Perry’s positive opinion of Father Pickin, or eventually, his disbelief that he had assaulted AA as he claimed in these proceedings.

85. [173]

    The result was that AA did not commence these proceedings until 2024, it seems after his diagnosis with motor neurone disease, which is now terminal. That sequence of events does not appear to be consistent with an opportunistic attempt to profit from the Diocese by the pursuit of assaults which never occurred. Still adverse inferences were submitted to be compelled by other problems with his evidence. I do not accept this.

86. [174]

    Mr Perry’s evidence has to be approached in light of he never having read AA’s statements, but finding it extraordinary that AA was using him as a witness to an alleged crime. He considered that a best friend would at least have said something to him at the time of the alleged offence, at least to warn him. That Mr Perry had felt some resulting resentment towards AA was apparent.

87. [175]

    Mr Perry plainly did not believe that the abuse had occurred. This must be considered in light of his ongoing relationship with Father Pickin over many years, he having considered him to have been a friend to all of the students at the time of the alleged assaults. His evidence also included that he had never observed AA being paralytically drunk while they were at the Presbytery together, or even highly intoxicated, distressed, fearful, anxious or angry, or Father Pickin giving him special attention, touching him or exhibiting favours consistent with grooming. The result, he said in his statement, was that he was shocked and bewildered by the allegations which AA had made.

88. [176]

    I accept that Mr Perry gave evidence which he believed to be true. But it also has to be remembered that his evidence was affected by the passage of time and that the beer that he had also been given by Father Pickin may also have affected what he was able to remember from so long ago. Further, that he was giving evidence about matters for which, unlike AA, he had no particular reason to remember.

89. [177]

    By way of contrast, AA retained a vivid memory of what had happened to him when he regained consciousness on the floor of the bedroom, Father Pickin forcing him to perform oral sex, after he had been affected by the beer he had drunk.

90. [178]

    That Father Pickin, a family friend, never attempted to assault or groom Mr Perry, who had no cause to suspect him of assaulting AA, does not establish that he could not have assaulted AA as he remembered.

91. [179]

    Mr Perry later became a police officer and Father Pickin an assistant police chaplain. Mr Perry believed Father Pickin to have been a good man, with whom he had had continuing irregular contact over the years. Father Perry was a friend of his family, he had officiated his brother’s wedding and given his father his last rites.

92. [180]

    The result of this ongoing relationship was that when Mr Perry read the adverse report about Father Pickin in the Newcastle Herald in 2015, which included that he had denied offering alcohol to boys at the Wingham Presbytery during overnight trips, he believed his denial. That was despite his own experience of Father Pickin having given him and his friends alcohol at the St Patrick’s presbytery, as well as when he took them on trips to the Sunshine Coast.

93. [181]

    That, it must be accepted, requires Mr Perry’s view of Father Pickin to be approached with a measure of caution.

94. [182]

    In the result, given all that I have discussed, I am satisfied that AA’s evidence about the sexual assaults he pursues must be accepted, despite the difficulties with his evidence. On this issue, his evidence, aspects of which were corroborated by and supported by that of Mr Perry, as I have explained, have led me to have the required actual persuasion that he was assaulted by Father Pickin as he claims.

Was the Diocese vicariously liable for Father Pickin’s abuse?

1. [183]

   There is no suggestion that the Diocese was aware of Father Pickin’s wrongful actions against AA, or that he was an employee or independent contractor. It was his role as a parish priest from which AA claimed the Diocese’s vicarious liability for his assaults arose.

2. [184]

   Causation was also in issue, to which I will return, but which I am satisfied was established.

3. [185]

   AA’s case was that the evidence established the formal structures that were in place which allowed the Bishop to exercise control over and to limit Father Pickin’s area of independent action. The Bishop had the means to do so by providing instruction, supervision, transfer, limitation on authority for parish priests like Father Pickin and ultimately, by seeking sanctions, including their expulsion, from Church authority. In return the priest was clothed with the authority of the Church.

4. [186]

   There was no issue that if the Diocese was vicariously liable for the sexual assaults, AA’s damages are not limited under the Civil Liability Act and his claims for aggravated and exemplary damages are not thereby excluded. That will also have an impact on the calculation of interest.

5. [187]

   AA relied on SR at [164] and DP v Bird [2021] VSC 850 at [178], the appeal from which was dismissed, but is subject to an appeal currently reserved in the High Court, to help establish the claimed vicarious liability.

6. [188]

   That liability was argued to arise from Father Pickin’s appointment as a parish priest, the role and responsibilities and access that gave him to teenagers such as AA, especially given the teaching duties he was given to perform at Wallsend High School as a result.

7. [189]

   Thereby the Diocese enabled him to invite boys to attend the presbytery he was given to live in alone on Church property, where he controlled who was present there. Those circumstances enabling him to exercise his authority over his victim, which resulted in AA attending the presbytery where Father Pickin was able to provide him with cigarettes, a poker machine to play and the beer by which he was intoxicated to the point that enabled Father Pickin to pursue his abuse.

8. [190]

   The Diocese’s case was that it had not placed Father Pickin into a position of power, control or authority vis-à-vis AA, nor was this established by Father Dillon’s evidence. Nor were the Friday evenings at the presbytery “Church events”. Further, it was relevant that Mr Perry was not a practicing Catholic and that he did not go to church or ever become a Catholic.

9. [191]

   Despite this I am satisfied that vicarious liability was established, having considered what lies in issue between the parties in the way discussed in Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 and how that was applied in Bird. That conclusion was supported by various evidence, including that which Father Dillon gave. The Diocese itself led no evidence about the matters on which the question of vicarious liability turned, as undoubtedly it could have. There is thus no reason to doubt Father Dillon’s evidence.

10. [192]

    Such a basis for vicarious liability has been accepted in the United Kingdom: Maga v Archbishop of Birmingham [2010] EWCA Civ 256; [2010] 1 WLR 1441, it being concluded that the abuse of the youth there in question was “so closely connected with [the priest’s] employment” as a priest at the Church “that it would be fair and just to hold the [archdiocese] vicariously liable”: at [38].

11. [193]

    Vicarious liability arising outside the formal boundaries of an employer/employee relationship was confirmed in Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1. The existence of such liability in Australia was accepted in Bird v DP (2023) 69 VR 408; [2023] VSCA 66 (Bird appeal) where Prince Alfred College was applied.

12. [194]

    The fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability, at least where an employment relationship exists: Prince Alfred College at [80]. Vicarious liability being a mechanism by which legal responsibility is attributed to a person arising out of the conduct of another person, despite the first person not directly being at fault. Employers have thus been held vicariously liable for criminal conduct when the employee’s conduct occurred in the scope of the employment.

13. [195]

    But the fact that employment afforded the opportunity for the commission of a wrongful act is not, of itself, a sufficient reason to attract vicarious liability: Prince Alfred College at [80].

14. [196]

    The relevant approach to the question of vicarious liability was there explained to require consideration of “any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim”. Further, it was necessary to take into account the employee’s “authority, power, trust, control and the ability to achieve intimacy with the victim”, the latter feature being especially important. Where an employee in such circumstances takes advantage of his or her position with respect to the victim, “that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.”: at [81].

15. [197]

    In Bird, Forrest J concluded that the High Court’s approach in Prince Alfred College did not limit vicarious liability to employment situations: at [172]-[175]. That being supported by the approach adopted in Diocese of Sale v WCB (2020) 62 VR 234; [2020] VSCA 328. The examination required being of the role assigned by the Diocese to an assistant parish priest and how the priest in issue was placed in such a role vis-à-vis the alleged victim and other children within his pastoral care: at [222].

16. [198]

    That was held to require consideration of matters such as the relationship between the priest and the Diocese; his role as an assistant parish priest in the local Catholic community; the control exercised by the Diocese or the Bishop over the priest in that role; the centrality of that work to that of the Diocese and the Church’s mission in that community; the opportunity the Diocese provided the priest to abuse his power or authority; the priest’s relationship to the victim and with his family, both generally and at the time of the assaults; the vulnerability of potential victims to the wrongful exercise of his authority; and the circumstances in which he carried out the assaults: at [224].

17. [199]

    The evidence as to these matters resulted in the conclusion that vicarious liability had been established. On appeal it was held that the relationship between a diocese and a priest “is, necessarily, sui generis”, it not existing in the context of a commercial relationship but being founded in the context of the hierarchical system of a Diocese of the Roman Catholic Church. That not necessarily precluding the implication of vicarious liability on the diocese for the wrongful acts of a priest within its domain: Bird appeal at [120].

18. [200]

    The principal evidence in that case had also been given by Father Dillon, there in respect of the assistant priest who came under the supervision of both a parish priest and the Bishop of the Diocese.

19. [201]

    The starting point of the analysis of vicarious liability was identified to be that the position of a priest within the Diocese was subject to the appointment of the Bishop: at [124]. It was concluded that rules of Canon law permitted the Bishop to exercise control over the priest that “was at least as great as, if not greater than, that enjoyed by an employer”, for reasons which were explained: at [125]. Further, that his assignment was subject to the ultimate authority of the Diocese, as exercised by the Bishop: at [126]. With the result the right to exercise control over aspects of his work, appointment, role and duties in the parish: at [127]. That work being necessarily and integrally interconnected with the fundamental work and function of the Diocese, with the priest not acting independently of the Diocese, but as a representative of it: at [128].

20. [202]

    Further, the priest did the work of the Diocese in the parish to which he was appointed, the Diocese doing its work by and through him. He, in a real and relevant sense, being the servant of the Diocese, even though not, in a strict legal sense, an employee, but by virtue of his role being an emanation of the Diocese: at [129]. That established that this role rendered the Diocese vicariously liable for any tort committed in the role of an assistant priest within the Diocese: at [130].

21. [203]

    The High Court is reserved on the appeal from Bird. The parties did not agree that judgment in this case should be stayed until that decision is given. I have concluded that justice requires that there should be no delay, given AA’s undisputed ill health. Further, that the conclusions reached on the law in the Bird appeal are correct and should be followed.

22. [204]

    Father Dillon’s evidence established the nature of the position to which Father Pickin was appointed and the power, control and authority which he was able to exercise as a result. It included:

23. [205]

    In cross examination Father Dillon explained that the actual use made of a presbytery depended on the parish priest in residence, because it was his home. Some priests were extremely private, while others would have a sense of open house, welcoming parishioners for all kinds of meetings. Much depending on the size and arrangement of the presbytery, some being smaller than others.

24. [206]

    In his experience gatherings such as youth groups would always involve other adults, kids being a bit of a handful, rather than as the result of concerns about the scandals which have since emerged. Often, they were volunteer parents. But the Church had few written rules and stipulations about this at the time. It was just common sense to have others help keep things manageable and running as smoothly as possible.

25. [207]

    In re-examination Father Dillon said he could recollect no written rules about the use of the presbytery in 1969 when he was ordained. His 8 years of study for the priesthood had involved theology, philosophy, scripture and canon law to a degree, as part of academic preparation. But pastoral preparation for priests had been limited.

26. [208]

    Father Dillon also said that supplying or even consuming alcohol and cigarettes in the presence of children was totally foolhardy and irresponsible and out of order for a priest, reprehensible and to be condemned.

27. [209]

    AA’s evidence about how he had been raised to regard priests, accorded with this evidence. As did the undisputed evidence about the use which Father Pickin made of the presbytery.

28. [210]

    Approaching the evidence in the way discussed in Prince Alfred College and Bird, I am satisfied that like the assistant priest considered in Bird, the Diocese did give Father Pickin a special role when it appointed him to the position of parish priest of AA’s parish. That role being of such a kind that it was vicariously liable for his assaults, notwithstanding that they unarguably involved criminal acts, even if it was then not expected that priests would have unsupervised children at the presbytery, or give them alcohol and cigarettes.

29. [211]

    Not only did the role he was appointed to give Father Pickin access to children in the parish, arguably even greater access than he might have had, if he had been a mere employee, it required him to actively engage with them. That role also led to him being appointed to teach the Catholic religion at the local State High School. That giving him similar access to children that an employee would have had.

30. [212]

    Teaching that scripture class to year 8 in 1969 gave Father Pickin direct access to the boys who he was entitled to invite to the presbytery on Friday nights, where the Diocese required him to live alone, because of his role as a parish priest. His role also entitled him to control who had access to the presbytery, that permitting him to invite those boys there at night, even though no other adult was to be present.

31. [213]

    Those he invited included Mr Perry, who was not a practising Catholic and AA, who was. AA’s regard for Father Pickin was of the kind Father Dillon described. It reflected what his parents had taught him, which accorded with the tenets and teachings of the Catholic faith Father Dillon explained. That their parents held Father Pickin in similar high regard, may sensibly be inferred, given that they allowed their boys to accept his invitations.

32. [214]

    That presbytery was where the Diocese required Father Pickin to live alone to perform his duties as the parish priest. It left him to determine who and when he invited others there. Utilising the authority he had been given as a parish priest and the trust which parishioners had for him as a result, provided him the opportunity to assault AA as he did. That and the beer and cigarettes which he was able there to give the boys he had invited to the presbytery, involved an obvious abuse of the trust and respect which he was given and commanded as the parish priest.

33. [215]

    The opportunity for that behaviour was given to Father Pickin by the Diocese, despite the risks which it then knew priests could pose to children, if alone with them.

34. [216]

    The evidence established that it was the Diocese which gave Father Pickin the authority, power, trust, control and ability to achieve the intimacy he had with his victim, AA. Indeed that may have been greater authority and power than he would have had, had Father Pickin been a mere employee of the Diocese.

35. [217]

    The Diocese enabled Father Pickin to arrange what gave him the opportunities to assault AA as he did, despite other boys nearby in the presbytery. That is, by plying them with beer, in AA’s case enough to intoxicate him to the point that he passed out in the other room where he went to play the poker machine Father Pickin kept there, that rendering him incapable of resisting the sexual assaults Father Pickin was then able to pursue.

36. [218]

    It was the special role which the Diocese gave Father Pickin and all that flowed from it in respect of the access which it gave him to children and students, of which it was undoubtedly aware, that allowed Father Pickin to repeatedly abuse AA as he did. That the Friday nights he arranged were not “Church events” does not preclude the Diocese’s vicarious liability.

37. [219]

    That the Diocese did not employ Father Pickin and was not aware of what he so wrongly did to AA at the presbytery, also does not preclude the conclusion that it was vicariously liable for his assaults. To the contrary, on all the evidence I am satisfied that his wrongful acts must be accepted as having been committed in circumstances which render the Diocese vicariously liable for them.

The claim in negligence

1. [220]

   Unlike the position in Bird, the Diocese did not admit that it owed AA a duty of care, notwithstanding that he was the parish priest and taught scripture at a local school as a result. It relied on there being no authority which established the existence of such a duty, to advance its case. But that cannot lead to the conclusion for which it contended.

2. [221]

   The claim in negligence must be considered in accordance with the requirements of the Civil Liability Act. The onus fell on AA to prove his case, including in relation to any fact relevant to causation: s 5E. The negligence claim has to be approached in accordance with the general principles specified in s 5B. The Diocese contended that even if it was accepted that there was either a general or a specific risk in respect of Father Pickin, there was no significant probability of the occurrence of the risk, as regards AA.

3. [222]

   I am satisfied that the Diocese did owe AA a duty of care and that he established the claimed negligence, despite the Diocese’s case that it was not any of its alleged failures which caused him to be abused, but rather the insidious nature of child abuse, which meant that its detection was not forthcoming. Nor can it be accepted that the duty sought to be imposed on it rested on recent standards informed by increasing knowledge of the dangers and reality of abuse, as of 50 to 55 years ago.

4. [223]

   That is contrary to the evidence and to principle.

5. [224]

   I am satisfied that the evidence I have discussed makes the conclusion that the Diocese owed AA a duty of care unavoidable. The duty claimed, given that he was a child in the care of a priest of the Diocese and entirely reliant on it to protect him from abuse by its priests, was to take reasonable care to avoid AA suffering foreseeable and not insignificant harm. The risk in issue being that he would be sexually abused by a priest such as Father Pickin.

6. [225]

   The Diocese relied on KQG v Trustees of the Marist Brothers [2018] NSWSC 1013, where on an application to strike out aspects of the statement of claim, Harrison AsJ took the view that awareness of prior sexual abuse at a school before the plaintiff was abused would be relevant to the scope of the Trustees’ duty of care, referring to S1 v Trustees of the Marist Brothers [2016] NSWSC 970. But concluding that sexual abuse of a pupil at another school did not inform the scope of that duty of care and that the behaviour of teachers or priests at other Marist Brothers schools across Australia, whether before or after the plaintiff’s attendance at the school, did not fall within the scope of the duty of care: at [49].

7. [226]

   The Diocese’s case was that even if it were accepted that the claimed duty now existed, it would not be concluded that it existed at the time of the assaults “because the risk or the perception of what the risk is has changed”. I am unable to accept that submission.

8. [227]

   How the Diocese and others respond to risks of which it was aware its priests could pose to children even in 1969, have certainly now changed. But such risks or their nature have not changed over that time. Such assaults involving as they then did and still do, criminal offending by adults towards vulnerable minors who came into their care and over whom they were given control because of the position to which the Diocese appointed them.

9. [228]

   In this case it is the existence of a duty of care, given the role to which the Diocese appointed Father Pickin as a parish priest, the access which that gave him to children in the parish, with whom it required its parish priests to interact, how it housed him and the control he was given and had over who came to the presbytery, which arises for consideration. In this case in circumstances where Father Pickin’s appointment also resulted in him teaching scripture at the local high school. All of which gave him the opportunity to invite his students to the presbytery as he did, where he lived alone, without other adults present and where the Diocese empowered him alone to determine who he invited there.

10. [229]

    That not only gave Father Pickin control over those he invited to the presbytery and for what purpose, but access to AA, Mr Perry and other boys, when no other adult was present. There is no suggestion that he invited the boys there for religious instruction. The Diocese did not require him to have other adults present if he invited children to the presbytery for that or any other purpose. Thereby the Diocese enabled Father Pickin, unbeknownst to any other adult, to give them beer and cigarettes, as the parties agree that he did.

11. [230]

    Given the layout of the presbytery and where Father Pickin kept the poker machine, that could have resulted in AA becoming inebriated to the point of passing out while he was out of Mr Perry’s sight, as was his evidence. That this could have given Father Pickin the opportunity to assault him, which he took, was also established.

12. [231]

    When this is considered together with Father Dillon’s evidence about the awareness which Bishops and other senior members of the Church then had about the risks which its priests could pose to children, given the complaints which they had received, which was not widely known in the community, I am satisfied that it must be accepted that the Diocese did owe AA the claimed duty of care. That accords with the Cunneen Report, where reference was made to the then Bishop of the Diocese having to deal with the risks which priests posed in the 1950’s.

13. [232]

    That the Diocese did not communicate the existence of the risks of which it was aware to the wider community, only reinforces that conclusion.

14. [233]

    Contrary to the Diocese’s case, those conclusions do not depend on increased knowledge of the risk of child abuse than existed 55 years ago. They reflect the circumstances which then existed, given what it knew and did at the time.

15. [234]

    Section 5B(1) requires consideration of the question of whether the risk was foreseeable, that is, was it a risk of which the Diocese knew or ought to have known; whether it was not insignificant; and whether, in the circumstances, a reasonable person in the Diocese’s position would have taken precautions against that risk.

16. [235]

    The Diocese’s case was that there was no evidence that it or any of its employees or clergy had actual or constructive knowledge of any propensity of Father Pickin to commit sexual abuse in 1969. Further, that AA had not pleaded, as he needed to, actual notice of the risk which Father Pickin posed to children. And in any event, even though Father Pickin also taught scripture at the high school, the type of non-delegable duty of care owed by a school to its students did not arise in his case, so far as the it was concerned.

17. [236]

    It was accepted that the Diocese owed a child invited to the presbytery a duty of care in respect of the maintenance of the presbytery, with resulting liability if injured as a result of non or negligent maintenance. But it argued that it had no duty to such a child in respect of preventing abuse at the presbytery by a priest, nor any obligation to have systems in place to prevent such abuse. That was even though it permitted underage and unsupervised events to take place at the presbytery, the risk in question not being foreseeable.

18. [237]

    I am not able to accept this.

19. [238]

    There was no issue that sexual assault was unlawful at the time that AA was assaulted. Given Father Dillon’s evidence about what was then known about the risks which priests could pose to children, the limited unwritten systems which then operated, Mr McClung’s evidence about having been abused by Father Pickin and the complaint he made to two other priests, that the Diocese then had no duty in respect of preventing the abuse of children at the presbytery at which it required Father Pickin to reside and over which it gave him control as it did, because the risk he posed was not foreseeable cannot be accepted.

20. [239]

    On Father Dillon’s evidence it must be accepted that at the time AA was assaulted, while there was not a widespread appreciation in the community of the existence of the risk which priests such as Father Pickin posed as there is now, the existence of such risks was known to Bishops and other senior members of the Church. That evidence not being challenged, it must be accepted that it was foreseeable that such a risk could materialise in Father Pickin’s case, it not being possible to foresee beforehand, which priest would actually pursue child abuse.

21. [240]

    AA also relied on the complaint made about Father Pickin by Mr McClung to Father Doran in 1966, as well as what he told another priest in confession, to establish that the risk Father Pickin posed was actually known by the Diocese before Father Pickin assaulted him. Mr McClung then having told Father Doran and the other priest that he had been touched sexually by Father Pickin.

22. [241]

    There is no suggestion that Father Doran notified the Bishop, or anyone else in the Diocese, of Mr McClung’s complaint. His evidence of the advice Father Doran gave him, suggests that while he accepted that Mr McClung had a basis for his complaint about Father Pickin’s abuse, Father Doran did not consider such behaviour serious enough to warrant it being brought to the attention of his superiors.

23. [242]

    Mr McClung also said that while he had told another priest about Father Pickin’s behaviour during confession, this priest would not have known who he was.

24. [243]

    AA’s case was that despite this, these complaints had been sufficient to put the Diocese on notice of the particular risk which Father Pickin posed. Mr McClung’s evidence, which I am satisfied must be accepted, plainly precludes the Diocese’s submission that in 1969, none of its clergy had any knowledge of his propensity to commit sexual abuse, being accepted. But that does not establish that anyone other than Father Doran and the second priest became aware of what Mr McClung had disclosed to them.

25. [244]

    Father Dillon’s evidence about how the Church structured and operated its Diocesan affairs establishes the command and control which it exercised over its priests, despite knowing as it did the risks which they could pose to children. But on his evidence it did not establish any formal system or expectation of communication to the Diocese, even in respect of what its priests came to know about child abuse, after complaints such as that which Mr McClung made about Father Pickin. That, it must be accepted, was the result of the approach which it then adopted to such known risks and their materialisation.

26. [245]

    It must be accepted that the Diocese could easily have taken a different course, given the undoubted seriousness and criminality involved in such behaviour and the command which it could exercise over its priests.

27. [246]

    Despite this, on Father Doran’s evidence even though its Bishops did become aware of such complaints, the Diocese took no steps to reveal the existence of those risks to the community, to prevent them materialising or put in place systems to deal with them if they did.

28. [247]

    The question of whether such risks were foreseeable does not turn on the inaction of the Diocese. The test requires consideration of whether the risk of AA being sexually abused by a priest such as Father Pickin was one that the Diocese knew, or ought to have known of: s 5B(1)(a). There can be no question that such a risk was not insignificant, given the lifelong consequences which such abuse can so obviously have for a victim.

29. [248]

    I am satisfied that the evidence does establish that even if the Diocese did not actually become aware that Father Pickin had abused Mr McClung, that he posed such a risk was one that the Diocese ought to have known about before AA was abused.

30. [249]

    That in the 1960’s when Father Pickin assaulted AA there was no widespread understanding in the community that priests could pose the risks which he presented, must be accepted. But Father Dillon’s unchallenged evidence that the existence of such risks was then known to Bishops and other senior members of the Church who received complaints and still they took no steps to deal with them, in my view must lead to the conclusion that the Diocese at the least ought to have known that Father Pickin could also pose such a risk.

31. [250]

    That is a matter of simple logic, the Diocese having taken no steps to identify those priests who actually posed such a risk, or to otherwise deal with the risks of its priests abusing a child. That conclusion cannot be avoided because the Diocese took no steps to share the existence of such a risk with members of its faith, or to take any steps to prevent its materialisation in the case of those priests, such as Father Pickin, in whose case the known risk materialised.

32. [251]

    It is that inaction, despite its knowledge of the existence of such risks, which I am satisfied permitted the materialisation of the risk which Father Pickin posed in the cases of AA, Mr McClung and BB.

33. [252]

    It follows that it must be accepted that the serious risk here in issue was foreseeable.

34. [253]

    I am also satisfied that the evidence establishes that a reasonable person in the Diocese’s position would have taken precautions against the risk of harm which it knew its priests, including Father Pickin as it transpired, could pose to children, given the harm that could occur if it did not take the care it could have taken.

35. [254]

    That requires consideration of the probability that harm would occur if care were not taken; the likely seriousness of such harm; the burden of taking precautions to avoid the risk of that harm; and the social utility of the activity that created the risk of harm: s 5B(2).

36. [255]

    There was no question about the social utility of the Diocese’s appointment of its parish priests, their interaction with children as a result, or the likely seriousness of the harm children would suffer, if the risk which a priest could pose to them materialised as it did in AA’s case.

37. [256]

    That drives the conclusion that a reasonable person in the Diocese’s position would have taken precautions against such a risk of harm materialising. The evidence not only established the position of authority to which the Diocese appointed parish priests such as Father Pickin, but also the access that gave them to children and the trust and esteem which the community held them in as a result, consistent with Church teachings. It was this which permitted him to gain access to them at the presbytery as he did.

38. [257]

    It also established the nature and quality of the control which the Diocese had and exercised over its parish priests, given the role of its Bishop. That authority, it must sensibly be inferred, extended to the teaching position which was also entrusted to Father Pickin, that further enhancing the access the Diocese knew he was given to children.

39. [258]

    The Diocese was also necessarily aware of the use he was entitled to make of the presbytery where it required him to live alone, that permitting him to invite students there without adult supervision as he did.

40. [259]

    All of these circumstances drive the conclusion that a reasonable person in the Diocese’s position would have taken precautions against the risk of harm which it knew a parish priest such as Father Pickin could pose to children.

41. [260]

    I am also satisfied that the Diocese’s duty was breached, it having failed to take any precautions against the materialisation of the risk of which it was aware. This conclusion is driven by the requirements of s 5C, which provides:

42. [261]

    The precautions claimed to have been available were:

43. [262]

    This was not a case where it was suggested that any precautions had been taken to prevent the materialisation of the risk posed and a resulting contest over whether they were adequate. On Father Dillon’s evidence there was a known risk, but no precautions taken to avoid its materialisation, either in the training priests received before they were ordinated, or in the training or systems under which they performed their functions as a parish priest living in a presbytery.

44. [263]

    It may be accepted that the materialisation of the risk which it was known such a priest could pose to children was entirely inconsistent with the teachings of the Church and that this would have been known by its parish priests, including Father Pickin. That this was a sufficient precaution may not be accepted.

45. [264]

    Given the control which the Church exercised over its parish priests, in Father Pickin’s case by the Bishop of the Diocese, I am satisfied that it must be accepted that its failure to take any precautions, even ones as simple as not permitting a priest to have children in the presbytery without other adults present, or making children and their parents aware through its teachings that its priests could pose risks to the safety of children if permitted to be alone with them, establishes the breach of its duty of care.

46. [265]

    Causation must be approached in light of the requirements of s 5D, which provides:

47. [266]

    I am satisfied that AA met the onus of establishing not only that he was abused by Father Pickin as he remembers, but that the Diocese’s negligence caused him to suffer harm as a result, it having been a necessary condition of the occurrence of that harm. That was established by the evidence of Father Dillon, AA and the experts.

48. [267]

    It must be accepted that if the Diocese had not appointed Father Pickin to the position of parish priest as it did, he would not have had the access which he gained to AA, or been able to exercise authority over him, which the teachings of the Church gave him. His appointment to teach scripture at the high school reinforced that authority.

49. [268]

    Had the Diocese taken what were relatively simple steps, within its power to take, given the control which it exercised over parish priests and their residences and what it could have easily told parishioners about the risks which they could pose to children, Father Pickin could have been prevented from abusing AA as he was able to do, with resulting harm to AA.

50. [269]

    I am also satisfied that having failed to take such simple and available steps, given earlier complaints made about other priests and even after Mr McClung’s complaint about Father Pickin was made, it is appropriate for the scope of the Diocese’s liability to extend to the harm AA was caused as the result of Father Pickin’s sexual assaults.

51. [270]

    Given the authority which the Diocese had and exercised over its parish priests, it is impossible to conceive that had available steps been taken by the Diocese to deal with the risks which its priests posed to children, that Father Pickin would have had the opportunity to assault AA as he did. It could not only have directed that priests such as he not have unaccompanied minors at the presbytery, but also could have disclosed the risks which it knew they could pose to the community, to take into account when priests sought to have access to children.

52. [271]

    The Diocese’s case was that other traumatic events in AA’s life had caused the harm AA claimed he suffered as the result of the actions of Father Pickin and the Diocese. Further that he could not establish that he would not have acquired the injuries and disabilities which he had suffered, irrespective of the abuse.

53. [272]

    I will return to explain the evidence which preclude this submission being accepted when I deal with damages. It was not in issue that it is now well recognised that childhood sexual abuse can contribute to later drug use and the development of psychiatric disorders. At this point it is sufficient to note that the experts agreed that Father Pickin’s sexual abuse would have contributed to various of AA’s injuries and disabilities, if it occurred. That must be accepted, with the result that it must be concluded that the Diocese’s negligence did cause the harm which AA suffered, in a material way.

Damages

1. [273]

   AA’s case was that he is entitled to substantial sums for his general damages, as well as aggravated and exemplary damages. It was agreed that they must be assessed at common law, if the Diocese was vicarious liability for the assaults, involving as they did trespass and battery: s 3B Civil Liability Act.

2. [274]

   There was no issue that if there was no such liability and damages for negligence had to be assessed under the Civil Liability Act, they would necessarily be lower, including as to interest. Further, that s 21 precludes an award of exemplary or punitive damages or damages in the nature of aggravated damages “where the act or omission that caused the injury or death was negligence”.

3. [275]

   AA also claims past, but not future economic loss, given his diagnosis. With past economic loss to be calculated on the basis of loss of opportunity for more remunerative employment: SR at [220]-[222] and PP v DD (No 2) [2021] NSWSC 1312 at [60]. His claims for past and future treatment expenses were not pressed.

4. [276]

   For reasons which follow I am satisfied that AA is entitled to an award of damages, but not all that he claimed, even though the Diocese’s case that his claims had simply been inflated, may not be accepted.

5. [277]

   AA’s case was that his damages would be approached on the basis that the sexual assaults involved “a sliding doors” moment for him. That is, but for them his life would have taken an entirely different trajectory. He, like his brother, achieving a profession and resulting material and other success in his life, which he was denied because of Father Pickin’s sexual abuse.

6. [278]

   I am not persuaded that the evidence permits this conclusion.

7. [279]

   While supported in part by the evidence which AA’s brother gave, it is not supported by contemporaneous documents, or the expert evidence. AA did experience other adverse life events which the evidence does not establish were caused or contributed to by the abuse. The experts’ opinion that AA would have been affected by these matters even if the sexual abuse had not occurred, must be accepted.

8. [280]

   The experts had not considered the position of AA’s brother. But they concluded that his mother’s death and other prejudicial aspects of his family origin had caused AA emotional and behavioural disturbances, which had affected his day to day functioning with resulting adverse consequences.

9. [281]

   That AA’s brother was also exposed to some of those risks must be accepted, but that he was exposed to all of them was not established. That he has not suffered the adverse consequences that AA suffered has, was also not established to have been because he was not the victim of sexual abuse.

10. [282]

    Different people can respond quite differently to similar life events and siblings do not necessarily have the same genetic makeup or experience the same things in their family environments, which can help drive life choices and experiences which they later have. The evidence did not explore similarities and differences between AA and his brother in various relevant respects. In the result I am not satisfied that AA’s brother’s circumstances provide a basis on which it can be concluded that the sliding doors claim was established.

11. [283]

    AA’s evidence included that he had been a high achieving student before the assaults. He had been a straight A student in primary school, in class 7A in his first year in high school and then dropped a class stream each following year, being placed in classes 8B, 9C and then 10C and D, before leaving in year 10 after he did not do well in his school certificate. His brother corroborated aspects of this evidence, but still AA’s account may not be accepted.

12. [284]

    Nor does the evidence of when AA was assaulted accord with the effect he attributes to it on his declining school performance, given all that contemporaneous school records show.

13. [285]

    In his second statement AA said that when he started high school he was an A grade student, liked learning and had friends. But after the abuse he felt angry with the world, felt lost and that his life was going to be hopeless. He was never happy and felt like an outsider, losing friends and his connection with classmates, having lost his interest in learning, not caring whether he would achieve anything in his life and going down into lower grade classes.

14. [286]

    While his explanation of the effect of the assaults on his emotions may be accepted, the records establish that AA already had problems in year 7, when he was in 7A. That led to comments on his report such as that he could have made more effort, had been very careless, was not working, needed to do more study and needed to make greater effort to maintain the class standard. Neither his year 7 or year 8 reports are consistent with it being a decline in his performance in exams after the assaults, which resulted in him being moved to 8E. That could have been the result of other problems he had to contend with.

15. [287]

    In year 8 there was only one streamed class, 8A. Other students being allocated alphabetically to the other classes, 8B to 8E. AA’s year 8 school reports and a photograph show that he was in 8E, not 8B, as he remembered.

16. [288]

    In the result damages cannot be assessed on the basis of the sliding doors approach

17. [289]

    Given the expert evidence I am, however, satisfied that the assaults did damage AA, that contributing to problems which AA experienced in his later life.

18. [290]

    In SR Cavanagh J explained the difficulties of assessing damages in historical sexual abuse cases: at [170]-[172]. Their assessment involves impressions formed on available evidence about the “the ordinary incidents of life, some good and some bad, which might befall a person over a [long] period’, and not just the application of mathematics. Such compensation must be fair, but it cannot be perfect.

19. [291]

    AA has given various accounts of his life and in many of them, he did not mention having been sexually assaulted. He has described being extremely unhappy, from year 8 onwards, abusing alcohol to numb his feelings and also abusing drugs from age 15. His evidence included that he was unable to tell anyone about the abuse, not trusting anyone, despite thoughts of the abuse and resulting anxiety having troubled him his whole life.

20. [292]

    In his statements AA referred to completing an apprenticeship as a shipwright, without having a TAFE certificate which he had attempted, but failed. He then lived on the Gold Coast for 2 years without working, before returning to Newcastle where he worked on an off in his father’s concreting business.

21. [293]

    AA described himself to have been an unreliable worker, short fused and an angry misfit, best avoided. After working for his father he got into operations management for a while, but lost interest in it, not having been the best supervisor and finding it hard to relate well with other staff.

22. [294]

    In 1978 AA was arrested at a house where he was with some friends after heroin was found there. He served 12 months in prison for the possession offence to which he pleaded guilty, but in his cross examination said he had then taken the rap for the woman who he later married. That was not something which he revealed to Mr Perry, even when he wrote to him from prison.

23. [295]

    In 1979 AA was working in Wollongong but was seriously injured in a car accident which left him unable to work for 2 years.

24. [296]

    In 1995 a soccer retail business which AA had run with his wife failed, he became bankrupt and lost the family home.

25. [297]

    In 1996 he was injured at work when he fell on a ship, sustaining an injury to his shoulder which did not preclude him from working entirely and for which he was compensated. He lost this employment after he returned to light duties.

26. [298]

    In 1996 AA went on a disability pension and has not worked since. He then described spending a lot of time in bed, gradually getting on top of his drinking and drug use but remaining medically unfit. He remains on a disability support pension.

27. [299]

    In 2013 he suffered a stroke and in 2018 he was diagnosed with motor neurone disease. His medical records also reflect ongoing problems with his mental health.

28. [300]

    AA also described having become a hypervigilant, controlling parent, not allowing his children to attend sleepovers, feeling agitated and hostile towards others and also becoming aggressive towards his eldest son. This aspect of his evidence was corroborated by his son.

29. [301]

    AA also said that he had hated the world since his abuse. He now felt sad and disappointed about his failure to achieve or make anything of his life.

30. [302]

    He described his problems with making friends, not enjoying the company of others and easily taking offence, with the result that he had no long-term friendships. He had few social or recreational interests, being more or less a hermit. Both his brother and his son corroborated this account. Neither had a close relationship with him and considered that the abuse which he only recently disclosed to them, explained some of his behaviour.

31. [303]

    AA was married for 33 years and described his wife to have been his best friend before her death, but he still felt that he could not trust her enough to ever disclose the abuse. He cared for her fulltime from 2005 until her death in 2011. His ongoing problems with anxiety and depression had precluded him from working again afterwards. He had been in a new relationship for some 5 years, but his partner believed him to be emotionally abusive and had twice obtained AVO’s against him.

32. [304]

    AA did reveal those assaults to Dr Apler and Associate Professor Robertson, who provided reports, as well as a joint report. Given all that they agreed, they were not required for cross examination.

33. [305]

    There was thus no issue about the difficult life that AA has led, or that events which occurred before and after the sexual assaults had contributed to his problems. The expert reports reflect that he had gambled heavily during his drinking periods, but that his drinking was not perceived as a problem in his marriage because his wife also drank.

34. [306]

    In their joint report Associate Professor Robertson and Dr Apler referred to a 1993 psychiatric report in which the sexual abuse had not been disclosed and in which AA had given a different account of his childhood. But they agreed that he suffered a persistent depressive disorder as well as polysubstance abuse disorder and periods of comorbid depression. While he had some systems of post-traumatic stress disorder, they were insufficient for that condition to be diagnosed. They also agreed that:

35. [307]

    The experts did not agree whether AA’s 12-month incarceration was a shock which had contributed to his depression, or was a consequence of the psychiatric problems which arose from his traumatic childhood.

36. [308]

    Whether other problems were the result of, or contributed to his depression was also not agreed. Becoming bankrupt and suicidal, for example. But his years caring for his wife were agreed to have contributed to his depression. As did his 1978 motor vehicle accident; the workplace injury which required surgery to his shoulder; his history of strokes which had adversely affected his health and capacity to work; and the chronic pain associated with his motor neurone disease.

37. [309]

    Other contributing factors the experts identified included AA’s loss of a long-term friend 10 years ago; his poor relationship with his son; and the breakdown of his relationship with his partner.

38. [310]

    The experts also agreed that:

39. [311]

    On all this evidence it must be accepted that the assaults did adverse damage for which AA is entitled to be compensated.

40. [312]

    AA claimed $330,00 general damages with 2% interest for 55 years since the assaults, as well as $100,000 aggravated damages. Under the Civil Liability Act his non-economic loss would be assessed at 34% of a most extreme case: s 16. The Diocese contended that general damages would be assessed at 28% or $101,000, with no aggravated damages.

41. [313]

    Ordinary compensatory damages “are supposed to be an amount adequate to compensate the plaintiff for all consequences of the defendant’s wrongful conduct that are not too remote; so what room is there for additional damages, which although dependent on some aggravating feature of the defendant’s wrongful conduct, are still supposed to do no more than compensate for consequences of that conduct”: State of New South Wales v Riley [2003] NSWCA 208 at [127] per Hodgson JA (with whom Sheller JA and Nicholas J agreed). While aggravated damages, “in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like.”: Lamb v. Cotogno (1987) 164 CLR 1 at 8 referred to in Riley at [126].

42. [314]

    This requires care to be taken to avoid double counting: Riley at [130]. So that “the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.”: at [131].

43. [315]

    AA argued that he was entitled to aggravated damages, given the horrific context in which his abuse was pursued, he having been stupefied in order that he could be assaulted, that involving a serious aggravation. That was not conceded.

44. [316]

    I am satisfied that the evidence of the serious wrongdoing involved in Father Pickin’s assaults does establish that AA must be awarded general damages for the pain and suffering and loss of amenity of life which he suffered as a result, given the contribution which the abuse made to the trajectory which his life took and the resulting psychiatric conditions which he suffered.

45. [317]

    I have explained the difficult course which his life took which included and was adversely affected by the sexual abuse he suffered, that having made worse the ongoing problems which it is likely he would have suffered, even if the abuse had not occurred.

46. [318]

    I am satisfied that AA’s description of his reaction to Father Pickin’s deliberate and repeated sexual abuse and the impact which that had on his relationships with others, his deteriorating interest in school and success in life, his abuse of alcohol and drugs and the development of the psychiatric conditions which he came to suffer, must be accepted as establishing their ongoing effects, as well as the causal connection of those assaults and the severity of the problems which he suffered. Especially given how his evidence was supported by that of his son and brother.

47. [319]

    This evidence was consistent with what is now known about the ongoing effects of sexual abuse: PP at [59]. That it exacerbated what AA would otherwise have suffered in any event, given his many other problems, must thus be accepted.

48. [320]

    In SR at [202] Cavanagh J adopted Chen J’s explanation of aggravated damages in AA v PD [2022] NSWSC 1039 at [126]-[127]. Relevantly, [126] of that judgment states:

49. [321]

    I also agree with and adopt that explanation.

50. [322]

    Unlike the plaintiff in SR, AA was not able to control or mask the shame, embarrassment and anxiety which he suffered as the result of the sexual abuse, with the result that he was unable to disclose it to anyone for many decades.

51. [323]

    It must be accepted that there was a resulting contribution to the ongoing problems which he experienced, as well as the extent and severity of the psychiatric conditions which he developed. That the sexual abuse had considerable continuing adverse effects must be accepted, they making worse difficult conditions it is likely he would have developed in any event.

52. [324]

    I also accept that the abuse was aggravated by the manner and circumstances in which Father Pickin assaulted AA. Abusing the trust AA was entitled to have in him, by giving him sufficient beer on a number of occasions to intoxicate him to the point that he fell unconscious, recovering consciousness to find himself being forced to engage in oral sex. That leaving him with such feelings of shame and embarrassment that he was unable to disclose the abuse, or its effects on him, even when he sought help.

53. [325]

    How Father Pickin conducted himself towards AA can only have been engaged in by a parish priest who was conscious of the wrong doing involved and still he repeatedly abused AA in the way he described.

54. [326]

    It is not necessary to separate the awards for compensatory and aggravated damages. In SR a figure of $300,000 was awarded for what must be accepted was more extensive sexual assaults pursued over a longer period than those which AA suffered. They resulted in him failing at school, abusing drugs and alcohol, offending, becoming involved in significant criminal activity and imprisonment, as well as problems with employment, his mental health and personal life.

55. [327]

    For AA, reliance was placed on various other judgments in which damages for child sexual abuse had been awarded, the catastrophic effects of such abuse having been well recognised. It is not necessary to explain them all, turning as they each do on their own facts.

56. [328]

    AA lived with the shame and embarrassment of which he spoke for many years before he was able to disclose the assaults, they all the time affecting his life and health in various adverse ways, including his relationships with his family, workmates and others. That as a result, even when he gave his evidence he found it difficult to remember and explain the assaults and their consequences, must be accepted.

57. [329]

    I am satisfied that this must lead to a substantial award for general and aggravated damages, albeit not of the magnitude which he claimed.

58. [330]

    I have concluded that the sum of $260,000 is the appropriate award for AA’s general and aggravated damages, given the Diocese’s vicarious liability for the ongoing results of the sexual abuse which he suffered, contributing as that did to what he otherwise suffered as a result of the problems he would have faced, even if he had not been assaulted as he was.

59. [331]

    There is no issue that he is entitled to interest on this amount.

60. [332]

    Under the Civil Liability Act, the maximum amount of damages which could be awarded for non-economic loss is $722,000 for a most extreme case: s16(2). If AA’s loss damages had to be assessed for his negligence claim, I would have concluded that the severity of his non-economic loss was greater than 15%, as the Diocese accepted: s16(3). On all the evidence I would have concluded that the claimed damages would have to be awarded. That is 34% or a sum of $245,480.

61. [333]

    AA also sought $150,000 exemplary damages. His case being that the Diocese having advanced Father Pickin to the devout members of the Church as a man of trust and respect, a man of God who had taken a sacred oath on his incardination, but who used his position in the most despicable way, in order to lure children onto Church property in order to defile them by his sexual abuse, made this an appropriate case for such an award.

62. [334]

    The Diocese contended that none would be awarded, such damages not being available in a negligence claim: s 21 Civil Liability Act and Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70.

63. [335]

    Exemplary damages are awarded rarely. They recognise and punish fault, but not every finding of fault warrants their award. This remedy is “exceptional in the sense that it arises (chiefly, if not exclusively) in cases of conscious wrong doing in contumelious disregard of the plaintiff’s rights.”: Gray at [20] per the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ.

64. [336]

    Such damages were refused in Bird: at [474], that being considered to be at odds with the policy rationale, when it was an innocent party who was to bear damages for the contumelious acts of another person for whom it was vicariously liable.

65. [337]

    In Riley it was explained that “[c]onduct 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 or (in cases where the defendant stood to gain more than the plaintiff lost) demonstrate that wrongful conduct should not be to the advantage of the wrong-doer.”: at [138].

66. [338]

    I accept that Father Pickin’s assaults can be described as having been pursued in contumelious disregard of AA’s rights, given how, on a number of occasions, he supplied him with enough beer to render him unconscious, in order to force AA to perform oral sex for his own gratification. He was never punished for that offending, AA having been unable to disclose his abuse until recently, after Father Pickin’s death.

67. [339]

    Were Father Pickin the defendant, there could be no doubt about an award of exemplary damages. But I am not persuaded that such an award is appropriate in this case, given that it is the Diocese against whom the Court’s orders will be made because I have concluded that it was vicariously liable for Father Pickin’s conduct.

68. [340]

    Had it been established that the report Mr McClung made to Father Doran had actually been conveyed to the Diocese before AA was abused, I would have come to a different conclusion.

69. [341]

    In that event I would have considered an appropriate award of exemplary damages to be $100,000. But that was not established. Given what Father Dillon conveyed to Mr McClung, that his report was conveyed to anyone else in the Diocese cannot be inferred, with the result that I am satisfied that it is not appropriate for exemplary damages to be awarded against it.

Past economic loss

1. [342]

   As Cavanagh J explained in SR, assessment of pecuniary loss can be difficult in a historical sexual assault case, when the plaintiff has kept the fact that he was assaulted hidden for many years: at [170]. AA bore the onus of establishing his losses and the causal connection of the assaults to them. He relied on the psychiatric injuries which he suffers to do so, as well as on the comparison he sought to draw with his brother.

2. [343]

   AA’s written submissions explained the basis for his claim for non-economic loss totalling some $939,705.17, plus interest of $168,606.93. Reference was made to the approach explained in Falco v Aiyaz; Falco v Falzon [2015] NSWCA 202 where Emmett JA explained at [13] that “where the negligence of a defendant causes injury and the plaintiff subsequently suffers further injury, the principles for determining the causal connection between the negligence of the defendant and the subsequent injury are as follows:

3. [344]

   This approach does not readily translate to the assessment which has to be made here.

4. [345]

   There was no issue about AA’s mathematical calculations, but the Diocese’s position was that if he were to be awarded such damages, they could only be determined on the basis of a buffer, given all that had to be taken into account in their assessment. It contended that this should result in damages of only $50,000, including superannuation.

5. [346]

   I am satisfied that this is also an appropriate case for AA’s past economic loss to be calculated on the basis of a buffer, given all the evidence about the factors which affected the earnings which he achieved over his lifetime: Ramsey v Denton [2021] NSWCA 310 at [61] and [112] applied in AA at [106]. Adversely affected as his earnings were by a range of factors, not only the sexual assaults, many of which he would have been affected by, in any event.

6. [347]

   The evidence included various contemporary records about events in AA’s life, illness he has suffered and various past medical treatment which he has received, all of which it is not necessary to discuss, there being little dispute about the chronology of the relevant events and their consequences for AA, apart from the effects of the sexual abuse.

7. [348]

   Assessing whether a plaintiff has lost the chance of achieving a different career or a higher income must be approached on the loss of a chance basis: Malek v J.C. Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. For the reasons which I explained in relation to the sliding doors claim, I am not satisfied that AA’s past economic loss can be approached in the way for which he contended.

8. [349]

   What was sought was that an impressionistic approach be applied to this loss, having regard to calculations from 1978 to 2004 which compared AA’s actual earnings to average weekly earnings. I am satisfied that this calculation cannot be accepted, all of the fundamental assumptions behind this claim, so advanced, not having been established.

9. [350]

   As I have explained, on the expert evidence, while the sexual assaults contributed to the psychiatric illness and other problems which AA suffered in his life, these were problems which he was likely to have suffered in any event, given his other risk factors and life events before and after the assaults. But the sexual assaults exacerbated those problems.

10. [351]

    In many of the years the subject of the economic loss claim AA had no earnings at all. This included 1979 and 1980 when he did not work after he completed his apprenticeship; while he was in prison for a year; for two years after his car accident; and from 1996 when he went onto a disability pension and never worked again.

11. [352]

    It was the Diocese’s case that AA’s evidence about the drug offence would not be accepted as truthful. I do not accept that submission. It adversely affecting as it did his damages claim, given that in the face of that evidence it could not be concluded that but for the assaults, he would not have taken the rap for an offence which his future wife had committed.

12. [353]

    That but for the assaults none of this would have occurred, was not established.

13. [354]

    Further, AA’s completion of an apprenticeship also cannot result in the award of the economic loss claimed. It was claimed that but for the abuse he would have pursued a career like his brother, who was a metallurgist. He presumably not only had to complete high school, but also tertiary education, with a resulting impact on his likely earnings if AA had also pursued such a course. This would likely have reduced his earnings in ways of which no account was taken in the calculation.

14. [355]

    In other years AA’s earnings were also reduced by the strokes he suffered of which no account was also taken in the calculation. I am not satisfied that it was established that the assaults contributed to them.

15. [356]

    AA also suffered workplace accidents, lost work because of his poor attitude to work, had a business fail with resulting bankruptcy and was unable to return to work after his wife died. That he would not have suffered any such problems had the assaults not occurred, may also not be accepted.

16. [357]

    While I accept that the assaults did contribute to his problems, including the drug taking he became involved in and the psychiatric problems he developed, which adversely impacted his work and resulting earnings, the evidence does not establish that but for the assaults, he would not have had any such experiences.

17. [358]

    All of this cannot result in the conclusion that the claimed economic loss can be calculated in the way for which AA contended, despite accepting that he did lose the chance that he would have otherwise had, to achieve higher earnings.

18. [359]

    I am satisfied that it thus must be accepted that he suffered some economic loss as the result of the assaults, contributing as they did to his psychiatric problems and their consequences for his earnings, during the times that he did work. That was dealt with in the evidence, but not captured in the table advanced in the written submission, for the calculation of the claimed loss.

19. [360]

    Assessing AA’s past economic loss is thus necessarily more an impressionistic than a formulaic exercise, AA not having advanced any expert evidence to support his case and not having identified in his calculation, with any precision, all the times he did and did not work.

20. [361]

    In the result I have concluded that calculation of the buffer which reflects that but for the assaults AA may have achieved higher earnings than he did, must be approached on the basis that the contribution of the sexual assaults to the problems which prevented that potential from materialising was 40%. His damages must also have regard to times when he actually worked and the difference then between what he earned and then average weekly earnings.

21. [362]

    It was agreed that the resulting calculation of that loss would be undertaken by the parties. In the event that there is any disagreement, the parties should approach with short written submissions.

Costs

1. [363]

   The usual order is that costs follow the event. In this case that is an order that the Diocese bear AA’s costs. If the parties wish to be heard on costs, they should approach the Court with short written submissions within 14 days.

Publication

1. [364]

   The judgment identifies by name AA, Mr McClung and BB, who were each sexually assaulted by Father Pickin at the ages I have explained. A question arose in relation to the anonymisation of their names, given the child sexual abuse with which the judgment deals, which had not been dealt with at the hearing. Such orders have been made in other cases where civil claims have been pursued in relation to distressing historical child sexual abuse.

2. [365]

   The parties proposed that these reasons not be published for a period of 10 days, other than to the parties and to Mr McClung and BB, or their legal representatives, so that submissions could be advanced about whether further orders should be made under s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW). Given the sexual abuse dealt with in the evidence and the distress and embarrassment it obviously caused those who gave evidence about it and the short delay in publication sought, I am satisfied that it is in the public interest to make the orders sought and that the public interest in that order significantly outweighs the public interest in open justice: s 8(1)(e).

3. [366]

   I reached that conclusion because the evidence was given in open court in civil proceedings, which thus does not attract the provisions of s 8(1)(d), which is restricted to criminal proceedings in which distressing or embarrassing evidence about offending of a sexual nature. But the child sexual abuse about which the evidence was given, could have been the subject of criminal charges and also gives rise to the considerations which s 8(1)(d) addresses. Now in the context of the publication of this judgment.

4. [367]

   In the result I am satisfied that the public interest accords with the short opportunity sought for submissions to be advanced about the appropriate orders to be made about the judgment, on publication. That was reinforced by AA’s very serious ill health.

Orders

1. [368]

   For the reasons given I will enter judgment for the plaintiff.

2. [369]

   The parties agreed that they would confer and provide final orders to reflect the conclusions which I have reached. In the event of any dispute, they should also approach.

3. [370]

   I order that:

   1. (1)

      This judgment not be published before 2 October 2024, other than to the parties and the two tendency witnesses, or their legal representatives, so that submissions can be advanced about whether further orders should be made under s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and that this order applies in the Commonwealth, that being necessary to achieve the purpose for which it is made.

   2. (2)

      The grounds on which this order is made are that:

Addendum

1. [371]

   Since the orders were made in this judgment on 20 September 2024, the name of the plaintiff and witness BB have been anonymised. At paragraph [332] the figure for the maximum amount of damages that can be awarded for non-economic loss has been amended in accordance with the Civil Liability (non-economic Loss) Amendment Order 2023.