First court bid to set aside old settlement fails

A victim of a notorious Brisbane paedophile who was fighting to have an earlier settlement overturned so he could sue for more has had his application refused in the first case of its kind since new laws were introduced.

Former Brisbane Grammar School counsellor Kevin Lynch.

A child sexual assault victim of a deviant school counsellor, who settled for $47,000 compensation from Brisbane Grammar School 17 years ago, has lost his bid to set aside the settlement.

The victim of former Brisbane Grammar School counsellor, Kevin Lynch, wanted to bring a new claim for up to $900,000 in damages, arising from Lynch’s assaults on him.

However, Supreme Court Justice Peter Davis today found the $47,000 the man received in 2002 was a fair settlement, based on the strengths and weaknesses of both sides’ cases.

Queensland legislation in 2016 removed limitations on damages claims arising from child sexual abuse and allowed courts to set aside previous settlements, if it was just and reasonable to do so.

Justice’s Davis’s decision is the first regarding an application to set aside a settlement since the Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Act of 2016.

Lynch sexually assaulted the victim on numerous occasions in 1986 and 1987, when the boy was aged 13 and 14 and a student at Brisbane Grammar, the Supreme Court heard.

Since leaving school the man has battled with drug and alcohol addiction and depression and has not had steady employment, the court heard.

Lynch committed suicide after he was charged in 1997 with indecently dealing with a boy from another school.

The Brisbane Grammar victim in 2018 applied to the Supreme Court for his settlement to be set aside so he could bring a new claim against the school’s Board of Trustees.

The victim gave evidence during the Royal Commission into institutional responses to child sexual abuse about Lynch’s assaults on him.

In his judgment, Justice Davis outlined the negotiations between the man’s and the school’s legal teams that led to the $47,000 settlement.

Justice Davis did not accept that the man’s settlement agreement should be set aside because it may have been influenced by a successful defence based on expiry of a limitation period.

The school’s lawyers argued that the settlement process was fair and it was a fair settlement sum and if set aside the school would be disadvantaged by loss of evidence.

Justice Davis said in his 2001 claim, the man faced the significant hurdle of proving the liability of the school for the actions of Lynch, based on law at that time.

The judge said if the settlement was set aside and proceedings commenced, there would be no limitation period and the man would have had good prospects of a significantly higher settlement.

There also would be little difficulty in proving the school’s vicarious liability for the sexual assaults and damage inflicted on the victim by Lynch.

But Justice Davis found the limitation issue did not materially affect the amount of the settlement reached in 2002 and was not a material factor in him settling the proceedings then.

“There is nothing to suggest that the settlement figure of $47,000 was not a fair and reasonable reflection of the applicant’s case as it appeared in 2002,’’ Justice Davis said.

By the time of the 2002 settlement, evidence had already been lost.

“The settlement figure of $47,000 was the product of fair, arms-length negotiations between two parties on equal footing, both appropriately represented,’’ Justice Davis said.

He dismissed the application.