McCrae V The Boy Scout Association of NSW & Potter (NSWDC 13 SEPTEMBER 2007)

In this matter Greg Walsh acted for Xavier McCrae, a former boy scout who was sexually abused by one Robert Potter, a Scout Leader. Potter pleaded guilty to sexually assaulting four young male complainants including Mr McCrae between 1978 and 2002.

Greg Walsh commenced proceedings on behalf of Mr McCrae claiming damages for assault against Mr Potter and damages for negligence against the Boy Scout Association. The Association eventually admitted breach of its duty of care. Damages against the association were assessed pursuant to the Civil Liability Act 2002.

Xavier McCrae initially attended at Kyle Bay Scout Hall where he was given, together with other young scouts, a firearm demonstration by Potter. Potter encouraged McCrae and others in the Venture Group to meet him at his house in Narwee. At the first meeting at Potter’s house, Mr McCrae was taken to a pistol club in Condell Park. Over the next three years, Potter encouraged Mr McCrae and other young scouts to come to his home where pornographic videos were shown including homosexual videos. Xavier and others were subjected to a number of forms of sexual views which continued right to 2002.

Potter was not only a paedophile but also a hebophile, that is, an adult who has a strong sexual and emotional attraction to adolescents. The ages of such children are between 11 and 17 years of age. Hebophiles invariably display predatory behaviour in identifying troubled or withdrawn post-pubescent children. They often comfort and support vulnerable post-pubescent children and make the child dependent upon them.

The effect of the abuse upon Xavier McCrae was profound. Xavier was treated by Dr Sara Williams and Dr Ruth Forster. The latter had been providing regular psychotherapy since taking over his care in 2004. She diagnosed him as suffering a chronic dysthymic disorder.

Judge Peter Johnstone found that Xavier McCrae significantly understated his case and gave evidence in a forthright manner. His Honour noted the effects of self-mutilation on Xavier’s upper arms which clearly indicated the diverse effect of Potter’s abuse upon him. His Honour accepted Xavier McCrae as a witness of credit.

The Scout Association qualified Dr White who trivialised Xavier McCrae’s sexual abuse as the substantive stressor. Judge Johnstone observed “the opinion of Dr White is in my view flawed, objectively unsupportable and less than compelling.”

Apart from Dr Sara Williams, Dr Ruth Forster and Dr Parker, McCrae was examined by Dr John Roberts. His Honour noted that Dr Roberts spoke of the severity of the symptoms experience by Mr McCrae, including self-mutilation, down to the muscle of an intelligent young man and the appearance of normality but severely affected. His Honour Judge Johnstone found that Xavier McCrae suffered a severe and debilitated psychological condition as a result of the sexual abuse he experienced. His Honour awarded damages against the Scout Association in the sum of $501,941 and against Potter of $766,941. The award against Potter included exemplary damages of $100,000.