Lawrence v Christian Brothers [2020] WADC 27

Material Facts

Mr Lawrence was sent to Australia from the United Kingdom as a ward of the state in 1952 when he was 8.  Between the ages of 8 and 16, Mr Lawrence attended schools operated by the Christian Brothers where he was subject to various forms of mistreatment and abuse in sexual, physical and emotional forms.  Following recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse, the limitation period for child sexual abuse was removed in Western Australia.  While the Christian Brothers admitted liability for some acts of child sexual abuse perpetrated against Mr Lawrence, they claimed that some of the abuse was not sexual in nature.  They hoped that this would exclude those non-sexual instances of abuse from the claim as the limitation period had not been extended for those non-sexual claims, attempting to drastically reduce the damages payable in Mr Lawrence.

However, the court considered that the “maltreatment and any consequent harm are so entwined with the sexual abuse and the harm which was caused by that abuse, that the causes and the harm cannot be disentangled.”  Therefore, the physical and sexual abuse were so “intrinsically intertwined” that the physical abuse was considered part of the sexual abuse and no limitation period applied, even to the non-sexual abuse.  Therefore, the Christian Brothers were liable for damages arising out of all the abuse suffered by Mr Lawrence at their hands.

Quantum Findings

General Damages

In assessing the General Damages paying to Mr Lawrence, the court considered comparable decisions and findings of General Damages that were awarded in those cases.  The court note the difficultly in this method, given the lack of comparable assessments available considering the limitation period had only recently been removed.

In applying this method, the court considered the nature of the abuse and observed that generally the severity of the psychological injury was impacted by the severity of the abuse.  Given the incredibly severe nature of abuse suffered by Mr Lawrence, the court considered that it was appropriate to recognise the “humiliation and degradation” suffered.  The court considered the devastating impact the abuse had on Mr Lawrence’s life.

The court considered an award of $400,000.00 to be appropriate to reflect Mr Lawrence’s pain and suffering and loss amenities.

Loss of Earning Capacity

In assessing Mr Lawrence’s loss of earning capacity, the court noted that these assessments are “not an exact science” and required an estimate of the likelihood of hypothetical situations.  In this case, the hypothetical situation was “Mr Lawrence working full-time in stable employment obtaining trade qualifications, being promoted and not remaining employed in labouring, semi-skilled, casual part-time work”.

Mr Lawrence had stopped working in 1990 and had from that time received a pension.  His employment history prior to that time was difficult to quantify.

Plaintiff’s Submissions

Mr Lawrence’s counsel submitted that the assessment should be based on the difference between Mr Lawrence’s actual earnings and that of the average income during that time.  They considering that between 1992 (when Mr Lawrence turned 18) and 1990 worked only 50% of the year and therefore earned only 50% of the average income during that time.  In 1990, Mr Lawrence injured his back and began receiving the Disability Pension.  Counsel submitted that Mr Lawrence’s loss during that period was that of the average wage. 

They said that were it not from the abuse Mr Lawrence may still have worked for the same employers but would have been in positions with more responsibility.  They gave the example that the labouring positions that he had worked in, could have been supervisory position were it not for the abuse.

Defence Submissions

Counsel for the Christian Brothers submitted that the during the period before his back injury, Mr Lawrence was working at 75% of the average rate.  They submitted that it was unreasonable to compare Mr Lawrence’s earnings to that of average wage given his lowered levels of education and as such they reduced the 25% gap between average and actual earnings of Mr Lawrence by a further 21%. They said that the back injury would have occurred regardless of the abuse and as such there was no loss suffered beyond 1990.

Court’s Consideration

There were few contemporaneous sources of evidence available for review.  Consideration was had for hospital records which noted Mr Lawrence’s occupation at various times when he was admitted for various injuries.

Ultimately, the court accepted that Mr Lawrence worked at a 50% of average capacity for the period from 1992 – 1990.  The court recognised that there were other factors which throughout his life may have impacted upon Mr Lawrence’s earnings capacity and allowed a discount of 10% to recognise this.  Loss for that period was ultimately assessed at $107,000.00.

The court then turned to the period from 1990 to 2010 when Mr Lawrence would have retired for work, considering his back injury and an underlying heart complaint.  It found that were it not for his psychological injuries resulting from the abuse, Mr Lawrence would have been in stable enough employment and would have had sufficient experience and training to continuing working in a less physically demanding role.  Therefore, the court considered that were it not for the abuse, Mr Lawrence would have been capable of earning an average wage even after his back injury in 1990.  Considering the other factors, the court allowed a 35% discount on this amount.  The loss for the period 1990 – 2010 came to $475,000.00 and therefore the total loss of earnings capacity was $582,000.00.

Loss of Superannuation

Loss of Superannuation was calculated with reference to the minimum statutory rate through the years that Mr Lawrence would have been working, less a 35% for vicissitudes.  This came to $38,000.00.