Our rel' Conlact:

R.J\:dal 970406:1 Richard J\ndcrson OJ 5226 8524

Harwood Andrews Pty Ltd ACN 076 858 034

Direct Linc: Your rel: HARWOOD

ANDREWS

70 Gheringhap Street Geelong DX 22019 Geelong

PO Box 101 Geelong 3220 Telephone (03) 5221 7166 Facsimile (03) 5221 8282

5 June I 998

Mr A Patterson Business Manager Geelong Grammar School 50 Biddlecombe Road COIUO 3214

Dear Andrew,

IBIR

Further to the settlement conference at the rooms of counsel for ~IB_IR_~ Andrew Ingram, on 1 June 1998 I have received a copy of the report of Dr A Koman of 17 March 1998 a copy of which is enclosed.

The histo1y, as set out in Dr Kornan's report, appears to have been obtained in an extraordinarily "patchy" manner and I suspect that part of the report has simply typed from a taped transcript.

Of more significance is the s_uggestion at paragrapl1 5 page 6 of the report thatBIR difficulties are largely caused by the alleged incident involving

BIM

However, I also observe at paragraph 5 page 7 of the report that Dr Koman also admits of the possibility that other factors may also be at work in causin~personality disorder.

It also appears to be common ground between thr repri of Dr Strauss obtained on behalf of the School and Dr Koman that BIR oes indeed suffer from psychiatric problems.

However, Dr Strauss and Dr Koman each disagree as to the extent to which the alleged incident has caused any o~current psychiatric problems.

I also confirm that after the discussion with Andrew Ingram on I June 1998 you requested that I provide you with a summary of the relevant issues which I do as follows:

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WJ Backhouse RFL Annois AM PRL Smith Q DG Ley Cl

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KJ O"Donnell RB Edmonds ./1..0 lJ Hunt JL Healey •!• DA Nelson RO PaynP AM BarKc1 •!•

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0 Mediation 0 Business Law 0 Wills & Estates ./I.. Environmental

Planning & Local Government Law

Ii Family Law + Commercial

Utioa1ion T Criminal Law •:•Personal ln1ury

l.aw

Level 3. 155 Queen St. Melbourne '.lOOO DX 5 71 Melbourne Telephone (03) 9602 3888 Facsimile (03) 9602 4322

tO Station St DX 30262 Wcrribee PO Box 208 Werribee 3030 Telephone (03) 9741 0077 Facsimile (03) 9742 54il3

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2 HARWOOD ANDREWS

l. To be successful in bringing any claim against the School~nust establish that the School was in breach of its duty of care.

The first hurdle which such a claim faces is that the course of action is now potentially statute barred and~ may need leave to proceed prior to commencing any proceeding.

In this regard I consider it likely that~would assert that he has only relatively recently become aware of the cause of his psychiatric problem and that the limitation period should not commence until he became so aware.

2 Assumin~an overcome any statute of limitations difficulty, the next issue which he must confront is whether the School is vicariously liable for the conduct o BIM in circumstances where the incident alleged occurred on a weekend w 1en 1e permission of the School, at least as we understand~ claim, to the outing withlBIM !was neither obtained nor sought .

Ind~ed,IBIR llrns indicated that the permission of his father was sought to the out mg.

As previously discussed, I have very real doubts that the School would be held vicariously liable for the conduct o1BIM I in the circumstances which are alleged,

However, further factors which must be taken into account are the circumstances in whic.I~ had previously ceased to be employed by the School and in which he ~equently re-employed at Glamorgan.

While the circumstances of~arlier dismissal are somewhat unclear, it appears that they may be su~ closely related to his subsequent conduct

· to raise a real question as to whether or "not the School should ever have permitte1BIM Ito return to the employ of the School.

In such circumstances it might be argued on behalf ot1BfRlhat the School had a duty to ensure that the School only employed teacher~ were fit and proper for that purpose, and thatlBIM lby his earlier conduct should not have been re­employed.

Moreover,~~Jmay argue that it was reasonable for his parents to assume that IBIM I was a suitable person to take students on weekend outings on the

assumption that the School would only permit appropriate teachers to be employed. That is, the fact that the School employedlBIM I at all was an implied representation by the School as t9BIM I fitness to act as a teacher.

At present, no indication has been given to us by~r his legal advisers that they are aware of any previous difficulty concer111ng BIM . Instead[BTRls concerns appear to be directed to the fact that BIM was subseq1remfy convicted of a number of offences involving children.

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3.

HARWOOD ANDREWS

Assuming that~is able to prove some liability on the part of the School, he then must e~the amount of any loss or damage which he has suffered.

In my letter to you of 17 October 1997 I set out in detail the various heads of loss and damage which, it was asserted on~ behalf, gave rise to a claim of $80,000.00 which might be summarised as comprising the following:

3 1 Cost of prior treatment $12,765.00 (it is doubtful that~1as actually incurred this expense himself).

3.2 Cost of future treatment $14,250.00

J.3 Loss of earnings $25,000.00 net (said to arise due to difficulties experienced by~n completing his architecture course).

3.4 General damages $25,000.00.

3.5 An unspecified allowance for legal costs.

4. In the discussion on 1 June 1998 Andrew Ingram provided an indication that he would recommend settlement tolBI: lfor approximately 50% of his total claim i.e. $40,000.00. I point out that t 1s comment was made without instructions from~nd of course may not be necessarily acceptable to him.

It is, however, a useful guide to what~legal advisers think the true amount of the claim might be worth.

5. It appears to me tha~ill have very real difficulty with the quantum of his claim. .

Taking each component of the· damages claimed in ti.irn I make the following comments:

5.1. I suspect it might be difficult forlBIR lo show that he has in fact incurred fees of $12,765.00 in relation to past counselling with the psychotherapist Ann Cebon.

I note that~ parents have actively encouraged him in seeking professional assistance and it would seem likely that the cost of treatment has been paid for by his parents.

However, it is also likely that ~would recover the cost of past treatment in any claim against the School irrespective of who paid for that treatment.

5.2 The cost of foture treatment does not seem unreasonable having regard to the report of Dr Strauss, and indeed even the report of Dr Koman. In this regard I observe that the repo1t of Dr Koman indicates a

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6.

7.

4 HARWOOD ANDREWS

considerably longer period of further treatment than Dr Strauss which would only serve to inflate the figure of $14,250.00 currently claimed.

5 .3 I consider it migl'.t be very difficult for~to establish_ that. he has suffered loss of income of $25,000.00 net and that his failure to complete his architecture course in a shorter period of time was clue to the alleged incident.

5A The claim for general damages of $25,000.00 might conceivably be in the range of general damages which he might expect to recover if his claim was successful.

Consideration of relevant verdicts in comparable cases indicates that general damages would assess as high as $40,000.00 to $50,000.00.

However,IBTR1vould need to demonstrate that the incident alleged has signiftcanITy----dused or contributed to the psychiatric problems from which he suffers and having regard to other factors, including his lifestyle and background, this may be difficult for him to achieve.

I also observe that the nature of the assault which is alleged to have occurred was at the lower encl of the range of sexual assaults and did not involve penetration.

Further, there was no overt threat of violence or physical intimidation which would also serve to reduce any claim for general damages which ~might otherwise expect to recover.

An issue which should be of concern to the School is the fact that there were other students of .the School present OJ! tbelil!I at the time. of the alleged incident. Although no other claim has been brought as a consequence, the School should be alive to the possibility that any publicity given toiBTRl claim may encourage other students involved in the incident to make a si~claim. Whether or not this is likely is unclear, and I note that a large number of years have passed without any allegation being made by any other student although there does appear to be some risk that this might occur.

If there can be no settlement reached in relation toiBTFflclaim, and should!BfRl choose to issue legal proceedings (which would se~ely) considerable ~ costs would be incurred prior to this proceeding being ready for trial.

As significant negotiations have already taken place between the parties the costs incurred after the issue of proceedings and prior to trial would be expected to be reduced.

I would anticipate that costs prior to trial for each pariy could be conservatively estimated to be in the range of $8,000.00 to $10,000.00 and conceivably more if, for example, forther expert reporis are obtained or costs are incurred in interviewing and locating any relevant witnesses.

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5 HARWOOD ANDREWS

The costs incurred will escalate at the stage where preparation for trial is necessary and at the actual trial itself The costs of conducting a trial could be conservatively estimated at between $2,000.00 and $3,000.00 per day. It is currently not possible to accurately predict the number of days which the trial of any proceeding commenced by IBTRWould occupy however it would be anticipated that at least four to 1ivecfays would be necessary and possibly considerably longer.

I also note that, in almost every instance, the courts will require a claim such as that made bJBTRlto be referred to mediation prior to trial. Mediation would provide anotfier-ot)po1iunity in which to seek to resolve the claim should any negotiations be unsuccessful before the commencement of proceedings.

8. Even if the School is successful in any claim brought byE:}you should note that there can be no guarantee that the School wotild recover all of the costs which were incurred. As a general nde party and party costs only would be awarded by the court to a successful defendant or plaintiff) and even if the School was able to obtain an order for costsBIR own financial position might ensure that recovery of those costs was difficu .

It should not be overlooked that the School also has potential rights of redress against its insurer although the indications which you have received from the insurer appear to indicate the nature of any coverage is unce1iain at best and realistically may be impossible to pursue.

I also observe that an insurer may take a view that, if deciding to extend indemnity, it should defend the claim given that the incident occurred on a weekend in circumstances where the School may not be vicariously liable. I note from our discussions that this would not necessarily suit the perceived interests of the School. · · ·

9. I also note that the School bas a right of recovery against IBIM I although IBIM I professes not to have any recollection of the incident alleged.

l 0. If the School was proposing to make any offer of settlement to~t would be appropriate to seek indemnity or contribution from both the insurer andlBIM I although whether or not either would be prepared to extend any indemmty or make any contribution appears unlikely.

I pa1iicularly note that if the School should settle the claim with BIR by direct negotiation without regard to any claim against its insurer or BIM then the School may find it extremely difficult to make any recovery from e1t 1er of those two parties who will not, of course, be bound by any settlement which the School negotiates

Obviously there are a number of difficult issues which the School must consider in deciding whether or not to make any offer tolBIR I In this regard I note your

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6 HARWOOD ANPREWS

instructions that it would be the School's preference that~ claim be resolved without any proceedings being issued.

From the discussions with!BfRIIegal advisers it appears likely thatlBIR lwill want at least a significant paymenf---a-ncr. consistent with the School's discussions withlBIR I I suggest that any offer of settlement be couched on the basis that it represents a contribution to the costs of treatment rather than any admission that the incident alleged occurred. ff such an approach is acceptable to the School the following may form the basis of an offer of settlement:

a) the School pay the initial cost of past and future treatment say $25,000.00;

b) each party bear their own costs; and

c) the offer in paragraph a) be subject tq!BTR1ntering into a confidential release of all alleged obligations on the part of tfiesc11001.

If necessary, and subject to the view of the School, it may also be appropriate to build in an allowance in any settlement negotiations of up to, say, $30,000.00 to provide some flexibility in negotiations.

You will recall that we indicated to Andrew Ingram that we would respond as quickly as possible and hopefully within one week of our meeting.

I look forward to receiving your instructions and should you have any query please do not hesitate to contact me.

With kind regards,

~

Richard Anderson

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