Written by Peter CarterOctober 26, 2021
The victim of a sexual assault as a youth by the owner of a suburban theatre has sought damages for the resulting psychiatric injury he claimed prevented him becoming an airline pilot and caused his life to ‘take a completely different turn’.
Then aged 16, Paul Miles – a pseudonym offered by the court – worked as a casual lighting operator in 1985 at the Kogarah Mecca Cinema owned and operated by Philip Doyle.
Around the time of the August 1985 school holidays Miles – under the influence of alcohol supplied to him by Doyle – accepted an invitation from the cinema owner to stay overnight at his unit where it became clear he was expected to engage in sex acts.
Other than mentioning it to another boy, Miles told no one what had occurred and the incident was never spoken of between the two participants.
He later reported the incidents to police. Doyle was convicted of a series of sexual assaults and was serving a sentence when Miles’ civil injury compensation claim came before Justice Richard Cavanagh in the NSW Supreme Court in July.Notwithstanding his denial of liability in Miles’ lawsuit, the court was satisfied Doyle had behaved towards the youth in the way that had been recounted in evidence.
“The plaintiff was given alcohol by the defendant who then took advantage of him in his intoxicated state,” Justice Cavanagh concluded. “Whist he did not physically resist and temporarily froze before protesting, he did not consent to the defendant sexually touching him”.
His Honour then set about a “challenging” assessment of what damages Miles was entitled to be awarded.“Challenging” because Miles – in his view and contrary to the conclusions of both forensic psychiatrists – had not developed his psychiatric illness until many years after the actual assault, all the time keeping the incident hidden from the world around him.
Having completed Year 12 in 1986 in Lismore with good grades, he commenced officer training at Duntroon in Canberra.
He left there though in May 1987 and with him left his hopes of becoming a military pilot and then a highly paid airline pilot 20 or so years later in receipt of a military pension.
In fact he struggled to hold down any job and – although working most of the time – his work was short term or part-time.
His only commitment to tertiary education was to complete a Bachelor of Media at Southern Cross University in 2009.
Remarkably though, over the 25 years since the assault, Miles’ occasional visits to doctors left no record of treatment for or discussion of psychological issues.
All that changed once the Doyle criminal prosecution began in 2012. His engagement in that process brought on depression, anxiety and PTSD for which Miles received a disability support pension.
Justice Cavanagh rejected the opinions of psychiatrists Alex Apler and John Baker that the youth had suffered from a psychological illness since almost immediately after the assaults.
“Neither the contemporaneous records nor the plaintiff’s evidence support the assumptions and conclusions of fact which they have made”.
Rather his symptoms increased or accumulated over time – in His Honour’s view – possibly because he had swept his feelings under the carpet.
He was satisfied that Miles’ incapacity to work from about 2013 – in the absence of evidence from Doyle that it was the result of other factors – was a result of the psychiatric conditions caused by the assault but made note that he had declined treatment and antidepressant medication for many years.
He rejected the theory of the foregone airline career .
“In my view, the plaintiff has not established that the effect of the sexual assaults was that he was unable to stay in the military and become a commercial pilot”.
Justice Cavanagh thus declined Miles’ $7 mil ask. Rather he allowed a past loss of income at the rate of average weekly earnings, namely $1.1k/week for eight years in the sum of $457k.
For the future, he merely allowed a ‘buffer’ of $200k and assessed general damages – on a common law basis as is allowed in NSW for sexual assault – at a further $200k.
Aggravated damages – to account for the long-term burden of shame, embarrassment and indignation over and above the injury itself – were awarded at $35k making up a total damages award of $1.273 million.
Categories: sexual abuse