Assessing damages for sexual assault

03 June 2022
Warning: This article contains details about sexual assault which may be upsetting for some readers. Reader discretion is advised.

This case examines the assessment of damages for a sexual assault claim, in particular, whether exemplary damages should be awarded in circumstances where the defendant had been convicted of criminal offences against the plaintiff over a lengthy period.

In Issue

  • What is the plaintiff’s entitlement to damages for historical sexual assault, including entitlement to aggravated and exemplary damages?

The background

The plaintiff (a 56 year old woman) made a claim for damages against the defendant arising from various sexual assaults committed by the defendant upon the plaintiff over a period of years when she was a child. The plaintiff and the defendant are brother and sister. The defendant was convicted of a series of sexual assault charges concerning the plaintiff and was serving a term of imprisonment. The defendant was self-represented at the trial. The defendant did not file a defence, did not contest any of the factual evidence, led no evidence and did not seek to cross-examine.

The sexual assaults commenced on the plaintiff in about 1971 when she was 5 years old. The 6 charged incidents occurred between 1971 and 1978, ceasing only when the defendant married and moved out of the family home. The plaintiff gave evidence that in addition to these sexual assaults, the defendant also physically hurt her by cruel physical treatment. Dr Jungfer gave evidence that this long period of cruelty and abuse (in which the plaintiff was scared to be alone in her family home in case there was a fresh assault) had a profound impact on the plaintiff’s emotional wellbeing. Although the plaintiff married, had 2 children and was able to enrol in an accounting course, her psychological wellbeing had been so badly affected that she had been unable to complete her accountancy studies or work full-time.

The decision at trial

In assessing general damages, the court noted that while judgments in civil assault claims may be a guide, each assessment involved a number of different and individual circumstances. The court noted that the defendant did not put in issue any of the plaintiff’s claims. The court assessed general damages in the sum of $200,000.

The court awarded $15,000 for out-of-pocket expenses (namely, counselling).

In assessing economic loss, the court considered that the plaintiff’s ability to work had been severely impacted and that the plaintiff is likely to continue for some years, and perhaps the rest of her working life, in lesser positions for a lesser salary and only part-time (full-time employment being beyond her functional capacity). The court awarded $150,000 for past economic loss on the basis of a loss of $262 per week for her working life to date being the difference, between the employment the plaintiff could have hoped to achieve and her current role. The court awarded $69,000 for future economic loss on the basis of a loss of $262 per week for the remainder of the plaintiff’s working life.

In assessing aggravated damages, the court referred to the comments of Justice Cavanagh in Miles v Doyle (No 2) [2021] NSWSC 1312 at [49] that the awarding of aggravated damages for sexual assault might be particularly apt in circumstances in which the person the subject of the assault suffers the long-term burden of shame, embarrassment and indignation in addition to a psychiatric illness arising out of the deliberate conduct towards them. The court noted that the conduct of the defendant clearly warranted the award of aggravated damages. The court assessed aggravated damages in the sum of $100,000.

The court did not award any exemplary damages on the basis that the defendant’s sentences of imprisonment were a sufficiently substantial punishment and there was no evidence of any unusual conduct by the defendant at the trial. The court noted the defendant’s behaviour could not have been more remorseful and he not only accepted all the claims against him but firmly stated that he had no intention of appealing any orders.

The plaintiff was therefore awarded the total sum of $534,000. In a subsequent judgment, the plaintiff was also awarded the sum of $210,499 for interest, plus her legal costs amounting to approximately $50,000.

Implications for you

In circumstances where a wrongdoer has received a “substantial punishment” for historical sexual abuse (which is the subject of the damages claim) and there is no evidence of any “unusual” conduct on the part of the wrongdoer, a court is unlikely to award exemplary damages. This case also offers an example of the awards of general damages and aggravated damages in historical sexual abuse claims.

Ask us how we can help

Receive our latest news, insights and events
Barry Nilsson acknowledges the traditional owners of the land on which we conduct our business, and pays respect to their Elders past, present and emerging.
Liability limited by a scheme approved under Professional Standards Legislation