School boy awarded damages in historical sexual abuse claim against teacher
Sep 2021 | InsuranceIntroduction
The Supreme Court of Queensland has awarded damages to a former high school student who claimed to have been the subject of sexual abuse by his teacher while he was 13 and 14 years of age.
The Court in the matter of Brockhurst v Rawlings1 accepted the female teacher had seduced the plaintiff and ordered she pay the plaintiff $1,456,524.15 by way of damages for personal injury, in trespass, by battery.
The facts
The (now) 38 year old Nicholas Brockhurst (plaintiff) was a former student at Toowoomba Grammar School (school), attending between 1996 and 1997 (years 8 and 9) when aged 13 and 14 respectively.
Mrs Meredith Rawlings (defendant) was employed by the school to provide pastoral care to the Year 8 boys and was the plaintiff’s year 8 English teacher. The plaintiff alleged the defendant had engaged in intimate and sexual physical contact with him that amounted to trespass to person, by battery. Battery is a tort that is committed when a person intentionally makes contact with another in a harmful or offensive way. Intimate or sexual contact, without voluntary consent, is offensive contact and the plaintiff’s age rendered him unable to voluntarily consent to the defendant’s sexual contact with him. The plaintiff claimed the defendant’s sexual abuse caused him personal injury, including a depressive disorder.
The plaintiff’s parents, upon finding notes from the defendant to their son which were ‘affectionate and loving’, raised concerns with the school. After being questioned by the Headmaster, the defendant resigned and ended her relationship with the plaintiff, which he alleged caused him to effectively spiral and withdraw from all attributes of life.
Despite the proceedings, the plaintiff alleged that his relationship with the defendant was romantic, intimate and sexual. The defendant asserted this to be a fantasy the plaintiff had convinced himself was true. She claimed to have had ‘a very close and supportive’, but appropriate, relationship with the plaintiff. Although admitting that she allowed the plaintiff to become too dependent on her, she denied having an inappropriate relationship with him and claimed her ‘loving and affectionate’ correspondence with the plaintiff was intended to be ‘motivational’.
Issues
The critical question was whether the Court was satisfied, on the balance of probabilities, that the defendant had intimate and sexual contact with the plaintiff, as alleged. A finding that there had been intimate or sexual contact between the parties would necessitate a finding that there had been trespass to person, by battery, given the plaintiff’s inability to voluntarily consent to the conduct because of his age.
Decision
Liability
Ryan, J undertook a very detailed examination of the available evidence to determine the nature of the relationship between the parties. Liability considerations were complicated by the fact the alleged sexual abuse had occurred some 25 years prior, the plaintiff never filed a police report and only commenced a claim for damages against the school in 2015 and the defendant in 2016, and the plaintiff had experienced behaviours consistent with oppositional defiant disorder (ODD) prior to the incident raising a causation issue.
Despite the defendant raising issue with the claimant’s credibility, the Court was ultimately not concerned by the reliability of the plaintiff’s evidence finding that many of the factual inconsistencies raised by the defendant were not inconsistencies when reasonably evaluated, satisfactorily explained as being a misunderstanding or mistake or were ‘trivial’ inconsistencies. The fact the plaintiff had made false statutory declarations in a Defence Force Application was accepted as telling ‘against his credit’ but did not detract from the credibility of his sworn testimony about his grooming, the abuse or its aftermath.
The Court ultimately accepted the plaintiff to be a credible and reliable witness who gave a compelling account of his grooming and seduction by the defendant, without embellishment. The plaintiff’s admissions as to how good the relationship made him feel as a schoolboy was found to add to his credibility with the Court noting it would be more expected that the plaintiff would describe himself as a reluctant participant if his account of sexual abuse was fabricated. The plaintiff’s account of his relationship with the defendant was corroborated not only by witnesses relying on their memory of events but by contemporaneous evidence, including correspondence from the defendant to the plaintiff.
Evidence was led that the claimant commenced obtaining tutoring/help from the defendant about twice per week within a couple of weeks of starting year 8. This escalated by semester 2 of year 8 to almost daily tutoring sessions, the daily exchange of notes which included phrases like ‘I miss you’, phone calls from the plaintiff to the defendant’s house, physical contact and kissing in the defendant’s car parked in the school carpark, correspondence from the defendant to the plaintiff over the 1996 Christmas school holiday period, visits by the plaintiff to the defendant’s house and a visit by the defendant to the plaintiff’s parent’s farm in around Easter of 1997. Following the farm visit, the plaintiff alleged the notes the parties exchanged began to include phrases such as ‘I love you xxoo’ and the exchange of song lyrics.
Evidence established the plaintiff and defendant were seen by other school students in a compromising position in the defendant’s classroom in April 1997 whereupon the defendant was directed by the Deputy Headmaster of the school not to be alone with the plaintiff or any other schoolboy and if individual instruction was to be provided to the plaintiff it ought to occur in a public place.
Notwithstanding this direction, contact between the plaintiff and defendant continued. The plaintiff stayed at the defendant’s house while he was attending a schoolboy’s rugby carnival at Downlands College in Toowoomba at the beginning of the 1997 June/July holidays when the plaintiff alleged the first occasion of sexual intercourse occurred. During the school holidays, the plaintiff’s parents found a fax and other notes and letters the defendant had sent to the plaintiff and took the correspondence to the school at the beginning of term 3. After being spoken to by the Deputy Principal of the school, the defendant tendered her resignation in August 1997.
One of the notes sent by the defendant to the plaintiff that was put into evidence consisted of two small pieces of paper written over the June/July 1997 school holidays which read, in part:
'Dear Nick,
This is a little ‘private’ note…..I also wanted to let you know how much I miss you……
So just remember, just because you’re not hearing from me often, doesn’t mean I’m not thinking of you. I’m thinking of you every minute of the day – I go to sleep with you on my mind & I wake up the same way. You are very special to me Nick & I love you very much. By the way, the letter you wrote me with the photos – that was the saddest but nicest letter I have ever received. I really love you. Meg.'
Other correspondence included a note in which the defendant told the plaintiff she had been writing out the lyrics of the song ‘Truly, Madly, Deeply’ for him and a note containing some of the lyrics to the Celine Dion song ‘Seduces Me’ to which the defendant had added the words ‘I love you’.
The Court did not accept the defendant to be a credible witness, noting she had a constructed explanation for every piece of incriminating evidence in the case. With regards to the notes containing song lyrics, the Court rejected the defendant’s explanation that the plaintiff had requested the lyrics because he wanted to play the guitar. Instead, the court accepted the plaintiff’s denial at making such a request and his claim that he had no particular interest in playing the guitar at the time, also commenting that the lyrics without chords would not assist a beginner to play a guitar. The Court found some of the defendant’s evidence implausible and contradicted her own correspondence to the plaintiff and the evidence of independent witnesses which corroborated many aspects of the plaintiff’s evidence.
Whilst acknowledging that to ‘right thinking people’ it would defy belief that a ‘seemingly intelligent, mature, woman’ would risk her career and marriage to have a relationship with a 13 year old boy, it was unnecessary for the Court to determine or understand why the defendant was sexually attracted to the plaintiff or why she took risks to be intimate with him.
Having examined all the available evidence, the Court accepted, in accordance with the standard in Briginshaw v Briginshaw2, that the plaintiff was sexually abused by the defendant, as alleged.
Causation
On the issue of causation, the Court accepted that the defendant’s sexual abuse materially contributed to the plaintiff’s psychological injuries. Whilst there was no dispute that the plaintiff was displaying behaviours consistent with ODD before he was sexually abused by the defendant, the Court was not persuaded that there was a link between the plaintiff’s relationship and employment difficulties and his ODD or that the possible consequences of ODD noted by the expert psychiatrists had actually emerged in the period since the plaintiff’s abuse. In any event, the Court was not able, on the evidence, to ‘disentangle’ the possible effects of ODD from the effects of the sexual abuse.
Quantum
Expert evidence diagnosed the plaintiff as having suffered from persistent depressive disorder, alcohol use disorder and ODD (in remission) with significant personality dysfunction. He described experiencing a wide range of symptoms since the sexual abuse, including:
- trust issues;
- issues with touch and intimacy;
- interference with his education and employment;
- interference with interpersonal relationships, including the end of his marriage;
- flashbacks and anger;
- indulging in excessive smoking, drinking and gambling;
- sleeping difficulties; and
- an inability to feel pleasure.
A total award of $1,456,524.15 in damages was made to the plaintiff.
The plaintiff’s claim for general damages of $100,000 and an additional $50,000 for damages for violation of personal integrity, relying on the NSW decision of B v Reineker3, was rejected. In awarding $65,000 for general damages, the Court made reference to previous awards made for general damages in Queensland sexual abuse/assault cases, which have historically been much lower than in southern jurisdictions. The amount awarded took into account the nature of the battery, which involved violation of the plaintiff’s personal integrity.
The Court acknowledged calculating economic loss was difficult given the claimant’s young age at the time of the abuse and limited evidence as to his future prospects but for the abuse. The only school results untarnished by the implications of the defendant’s sexual abuse were his primary school results and first semester high school results. Notwithstanding the Court finding that it was reasonable to accept the plaintiff was likely to have undertaken some additional study after leaving school, his likely past lost earnings were based on the average weekly earnings for males in Australia. Given the expert evidence suggested his symptoms would wax and wane over time, his future earning capacity was accepted to have been reduced by 30% and future economic loss was calculated on that basis.
Aggravated damages of $35,000 were awarded to acknowledge the defendant’s abuse of her position of trust over the plaintiff and the exacerbation of the plaintiff’s distress caused by the litigation. A further award of $15,000 was made for Exemplary Damages as a punishment and deterrent and to demonstrate the court’s disapproval of the defendant’s conduct. The Court considered this award appropriate given the defendant’s ‘utterly selfish conduct’ which included her sexual pursuit of the plaintiff, even after she had been warned to keep away from him by the school, and the fact that her conduct had taken away the opportunity for him to develop, in his own time, as a mature sexual adult.
The final damages amount was set off by the sum of $100,000 to take into consideration the school’s payment to him of $150,000 in damages.
Comment
This decision provides insight into how courts will determine the nature of an alleged historical sexual abuse relationship, and the extent to which the court will scrutinise the available evidence when evaluating the truthfulness and reliability of a plaintiff’s account of alleged sexual abuse, in the face of a defendant’s denial of it. It was, of course, integral to the Court’s finding that physical evidence in the form of notes and letters were still in existence (held as evidence by the school) and those, together with corroborating evidence from other students, the plaintiff’s parents and other witnesses, ultimately provided sufficient grounds to rely on the plaintiff’s testimony.
In terms of quantum, the case confirms that Queensland awards for general damages in sexual abuse cases continue to be much lower than awards being made in southern jurisdictions and provides further guidance as to when the court will be willing to award aggravated and exemplary damages in sexual abuse claims.
1 [2021] QSC 217.
2 (1938) 60 CLR 336.
3 [2015] NSWSC 949.
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