Steen v Trustees of the Diocese of Tasmania [2024] TASSC 3 (Link to AUSTLII)
The plaintiff brought this action in respect of sexual abuse perpetrated upon him by an Anglican priest when he was a child. The abuse took place on four different occasions between 1981 and 1987, when the plaintiff was aged between 10 and 16. The priest, Louis Daniels, was a prominent staff member and leader of the Church of England Boys’ Society (CEBS), and the plaintiff was a member of that organisation. The abuse was perpetrated by Daniels during activities either conducted by CEBS or related to its activities.
The defendant admitted that Daniels was employed by it and under its supervision and control at all relevant times.The plaintiff’s claim alleges that the defendant is vicariously liable for the acts of assault which constituted the sexual abuse, and further was negligent in its supervision and protection of him. The defendant admitted liability in respect of both causes of action. This includes full admissions as to the particulars of the abuse perpetrated by Daniels on the plaintiff and the consequent causation of injury to him.
The court was required to focus on an earlier settlement of the same claim (1994) and if that Deed ($34,000) was set aside, the quantum of damages.
The Deed
The 1994 Deed was held to be valid however section 5C of the Limitation Act 1974 (Tas) was addressed. The sole available ground for setting aside the agreement effecting the settlement under s 5C is “that it is in the interest of justice to do so”. The court accepted that litigation risk, in particular the assertion of an intention to rely on a limitation defence, was not expressly asserted or relied upon by the defendant in the negotiations. The settlement sum was not discounted by the plaintiff on that basis. However, the court went on to say at [159]:
On the contrary, the clear conflict between the denials in 1994, and the acceptance of responsibility now, supports the setting aside of the agreement. The position now taken by the defendant manifested by its admissions in this case was a course which was open to it in 1994. Instead the defendant negotiated the settlement based on denials of liability, which it now appears had no factual or legal merit, with a view to limiting the Church’s responsibility.
A number of factors were taken into account in setting aside the Deed under section 5C. A secondary argument was made by the plaintiff, that the Deed should be rescinded because it is unconscionable and/or on the basis of misrepresentation including fraudulent misrepresentation. That argument failed; the court was not satisfied that the plaintiff has made out a case that the deed should be set aside either for unconscionable conduct or fraudulent misrepresentation. ([174]).
Damages
General damages were assessed at $275,000.
It was accepted by the defendant’s counsel that as a matter of principle, the defendant’s response to the sexual abuse down to the time of trial was relevant to the assessment of aggravated damages ([248]). The court listed relevant factors at [249] and decided on an assessment of $125,000.
Exemplary damages were awarded having regard to factors listed at [263]. These included the defendant’s prior knowledge of Daniels’ propensity to commit child abuse and allowing him to remain in his position with CEBS, thereby directly leading to the further abuse of the plaintiff and others. An award of $100,000 was made.
Past and future economic loss was also considered.
Deduction of amount paid under prior Deed
No deduction was ordered. The court said at [331]:
I am satisfied in this case that the full amount paid under the deed does relate to the child abuse to which the cause of action relates. However, I am not satisfied that it is just and reasonable to take that payment into account in respect of the calculation of the award of damages. My reasons for this are because the defendant did not contribute at all to that payment, and the defendant’s conduct in utilising that fact in an effort to reduce the amount of the settlement. At least part of that money was utilised by the plaintiff to provide himself with some psychological therapy, in a context in which he had been offered no assistance at all by the defendant, despite the defendant being well aware of its default arising from prior knowledge of Daniels’ propensity. Further, the conduct of the defendant since the abuse, and the compounding effect that has had on the lifelong impact suffered by the plaintiff, means that it is, in my view, not just and equitable, to effectively give the defendant the benefit of this payment. Accordingly, the payment will not be taken into account in the award of damages in this case.
The total damages assessment was about $2.4 million.
[BillMaddensWordpress #2222]