A victim of the prolific paedophile Kevin Lynch at Brisbane Grammar school is taking his case to the high court in a push to secure what advocates say is a fairer compensation deal for the abuse he suffered as a boy.
The decision could open the way for dozens of other survivors to seek hundreds of thousands of dollars in new settlements from the school.
But if the plaintiff, known as TRG, fails in his bid, other victims who signed binding deals many years ago may be unable to seek what would be now regarded as fair compensation.
Lynch hypnotised, drugged, sexually assaulted and physically injured dozens of students as a teacher and “counsellor” at the school from 1973 until he left in 1988.
With the high court set to hear and possibly decide TRG’s case on Thursday, some of Lynch’s victims have come forward to express their frustration at the legal impediments to further damages, particularly in the light of the findings of the child sexual abuse royal commission in 2015, which uncovered more graphic evidence of Lynch’s behaviour and the school’s knowledge of it.
Two other former Brisbane Grammar students, brothers Jon and Daniel Fihelly, have spoken to Guardian Australia about the traumatic impact of the abuse they suffered at the hands of Lynch and what they regard as the “appalling” injustice of the way the law has operated in the case of TRG and others.
Like TRG, Daniel received a small payout in 2002, while Jon has never taken legal action against the school. As a result he is free to seek much larger compensation than his brother received but is angry that the royal commission findings appear to have had no impact on the Queensland courts’ rulings in TRG’s case, which he believes is a legal anomaly.
“I am furious that Brisbane Grammar school was told about Lynch’s abuse at least by 1981,” Jon says. “That is five years before either of us was abused. What happened to us should not have happened.”
Former headmaster ‘failed in his obligations’
TRG was among 100 students from BGS and St Paul’s, where Lynch later taught, who took legal action in the early 2000s to obtain redress for Lynch’s abuse.
Many accepted settlements that would be considered tiny by comparison with similar cases today, on condition that they would never speak about the deals nor sue the school, which denied liability. TRG received only $47,000 but his lawyers have argued he could reasonably claim almost $1m today.
In 2016 Queensland became the first state in Australia to repeal time limits on civil actions for child sex abuse and to allow victims to escape from such deeds of release where to do so would be “just and reasonable”. But in 2019 the Queensland supreme court found against TRG, the first Lynch victim to seek an order setting aside his earlier settlement and allowing him to pursue further damages from Brisbane Grammar.
Justice Peter Davis found that in mediation with TRG’s legal representatives in 2002, the school had fairly taken into account conflicting accounts from the former headmaster Max Howell, who swore an affidavit to say he had known nothing of Lynch’s abuse, and evidence from one former student and the parent of another who said Howell had explicitly been told of the abuse as early as 1980. After hearing a range of evidence from both parties, Davis decided it would not be “just and reasonable” to set aside the settlement, a decision the appeal court upheld.
Howell, who died in 2011, said in a 2002 affidavit: “At no time did I ever receive any complaint from students, staff, parents or any other person, in relation to Lynch’s behaviour.”
But the royal commission heard confronting evidence of Lynch’s abuse, including from a witness who alleged Howell had referred him to Lynch in 1980 and that in 1982 Howell had entered into Lynch’s counselling room where he saw the boy naked.
The witness, known by the initials BQA, said Howell had seen him with his trousers and underpants down in Lynch’s office, castigated him and sent him back to class.
“BQA said that Howell told him he was a ‘sick individual, or words to that effect’ and told him to return to class,” the royal commission reported.
In its findings the royal commission explicitly rejected Howell’s claim in the affidavit, accepting the evidence that Howell had been told of Lynch’s abuse by a parent in 1981.
“Howell did not investigate the allegations and did not report the matter to police or the board of trustees. In not doing so he failed in his obligations to protect the safety and well being of the students,” the commission found.
‘Boys who made allegations were not believed’
When Jon Fihelly discovered that his younger brother Daniel had been abused by Lynch at Brisbane Grammar in the 1980s, he blamed himself.
After decades isolated from each other, trying to shake off a deep sense of shame and humiliation, Jon and Daniel have only recently been able to discuss the abuse openly and piece together their young lives at last.
“It is sad, but talking has taken a weight from both of us,” Jon says.
Both men remember Brisbane Grammar in the late 1980s as a place of brutal discipline.
“I was playing handball with a friend in the wrong place and Max Howell grabbed us both by the hair and smashed our skulls together,” Daniel Fihelly says. “Going to Lynch was like a punishment.”
During Lynch’s time as a counsellor at the school, he used a pseudo-medical persona, including wearing a white lab coat, hypnotised and supplied drugs to students, asked students to remove their trousers and sexually assaulted them.
Jon Fihelly believes a culture of elitism at the school allowed the offender to prey upon less popular students, especially those not successful in sport or academic work, with little risk of being reported to police. Students who reported Lynch’s abuse were often scorned as “losers” by their peers.
“As long as his victims could be derided by the elitist elements in the student body, Lynch knew he was safe,” Jon says.
The royal commission found that when Howell was headmaster “there was a culture at Brisbane Grammar where boys who made allegations of sexual abuse were not believed and allegations were not acted upon”.
In 1985 Jon was an academically gifted student in year 11 but, when he was referred to Lynch for counselling after his parents separated, his marks plummeted.
Jon remembers challenging Lynch’s “counselling” methods of undressing him and performing sex acts. The following year, when Jon again challenged Lynch, the offender responded by threatening to abuse Daniel, who was then in year 8.
Lynch subsequently hypnotised Daniel before sexually abusing him.
“[Lynch] counted down from 200 and asked me to imagine I was in a barrel rolling in water and over a waterfall,” Daniel says. “I don’t think I was hypnotised.”
Jon’s abuse stopped only when he finished year 12 and left the school. Daniel escaped further assaults after the boys’ mother, a teacher at another school, noticed her son was unhappy at BGS in year 9 and asked if he wanted to leave the school.
Daniel managed to complete his schooling to the end of year 12 at a local state school, but was openly rebellious and left with poor academic results that he believes did not reflect his ability.
Both boys say they lost all trust in adults as a result of their experiences at BGS and struggled to find their feet after school, using alcohol and drugs to escape from the confusion they felt about why they were not able to fulfil their academic potential.
Jon tried to study at university several times over 10 years but left without a degree. He counts himself lucky that he joined the army in 1999 and served in Timor-Leste as a peacekeeper. He transferred to army intelligence and in 2005 was able to find a path to a successful civilian career as a construction manager.
Daniel did not continue studying after he left school. In 1997 another student reported Lynch to police and Lynch, by then working at St Paul’s, took his own life. It was only then that Daniel’s sister questioned him and he admitted he was also a victim.
High court decision has national implications for victims
Daniel was among 14 former students at BGS who launched individual legal actions 20 years ago to obtain redress for Lynch’s abuse. A further 86 people – 50 from BGS and 36 from St Paul’s – joined a group action against the two schools.
The first group of BGS claimants whose claims were settled received an average of about $60,000 each, but even at the time it was recognised that payouts could be much higher.
In a memorandum to members of the school’s board in late 2002, its chairman, Howard Stack, warned that the school might have to pay more than $6m in compensation plus legal fees to fight any cases arising from Lynch’s abuse that proceeded to court. He noted that St Paul’s had paid out as much as $350,000 to one victim of Lynch, and BGS liabilities could be higher, because more time had elapsed since Lynch taught at BGS, and claimants would pursue potential loss of earnings over that period.
TRG received $47,000 in 2002, but in his 2019 case his counsel submitted that he had a good claim for damages of about $900,00, due to changes in the law since 2002 affecting the school’s liability, the extent of TRG’s economic loss over the years due to drug and alcohol addiction and depression, and the generally higher amounts awarded in sexual abuse cases.
Jon Fihelly says the outcome of the 2019 case was disastrous for TRG and others in the same position.
“We both know TRG,” he says. “He was at BGS in the same years as our abuse. For the school to spend hundreds of thousands of dollars fighting a victim of abuse who only received a small payout is appalling behaviour.
“TRG has been ordered to pay the school’s legal costs ... The injustice is appalling and this amount of financial pressure on a traumatised victim is unbearable.”
The current chair of the Brisbane Grammar school board, John Humphrey, said this week it was inappropriate for the school to comment on the case while it was before the court.
However, he said the general position of the school since 2000 was that “the school has openly acknowledged the abuse that occurred, and the harm caused as a result”.
“The school has worked to support those coming forward since that time, providing compensation, ongoing counselling and other support,” he said.
“The school is committed to continuing to resolve matters with those who have experienced abuse, either directly or through the national redress scheme.”
The Fihellys, with two other men who were abused by Lynch, are collaborating with the survivor group Beyond Abuse to press the Queensland government for action to make sure the “just and reasonable” test for overturning settlements is interpreted in the same way as in other states.
In Western Australia, the interpretation of the test has resulted in cases being renegotiated out of court.
In Victoria, an abuse victim codenamed WCB had his settlement deed with the Catholic diocese of Sale set aside by the court of appeal.
“It is, in our view, very plainly just and reasonable to set aside the deed,” the judges found. “Indeed, it would positively be unjust and unreasonable not to do so.”
The Queensland attorney general, Shannon Fentiman, has indicated she will consider legislating if necessary.
“Any further action around legislation will be considered following the high court decision, which I will be monitoring closely,” she says.
Canberra plaintiff lawyer Hassan Ehsan says the TRG case is being watched very closely because of the potential impact of the decision on survivors of abuse.
“If the high court doesn’t give special leave, then TRG potentially doesn’t get any compensatory amount but this [precedent] then becomes another hurdle for victims to get over, particularly in Queensland,” he says.
“If the high court finds against TRG, then the court of appeal decision stands as good authority law in Queensland and on a national level, it has the potential to diminish the significance of WCB, depending on the reasoning of the high court, and that has a flow-on effect for survivors countrywide.”
Ehsan, a senior associate of Maliganis Edwards Johnson, says if special leave is granted, it may provide an avenue for TRG to introduce the royal commission findings and further evidence from the Stack memorandum into his case.
The Fihelly brothers believe the damage to victims from BGS is much more severe than previously reported.
Twelve victims of Lynch who have died or taken their lives are commemorated in a memorial at St Paul’s, but Jon and Daniel say they know of others who have also killed themselves. That knowledge fuels their fight for Brisbane Grammar to give ground on compensating surviving victims.
“How could the school be so callous as to spend that much money to deny giving TRG another cent more?” Jon says.
