Assessing damages in sexual assault claims

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

Sexual assaults are often causative of long-term psychiatric injuries. Recently, the NSW Supreme Court provided some guidance regarding the assessment of damages in the context of a sexual assault claim and observed that the moderating limitations on damages imposed by the Civil Liability Act are usually precluded from applying.

In Issue

The NSW Supreme Court had to consider

  • Whether the alleged sexual assaults occurred;
  • If the assaults occurred, whether they were causative of the plaintiff’s psychiatric diagnosis and condition; and
  • Whether, and to what extent, compensatory and aggravated damages for the assaults should be awarded for the tort of trespass to the person.

The background

The Assaults

The plaintiff was employed at a cinema owned by the defendant between March 1986 and December 1987. At the time, the plaintiff was aged 14 to 16 years old. Over that period, the defendant subjected the plaintiff to various grooming behaviours before sexually assaulting him on multiple occasions. The plaintiff gave evidence of several incidents between August 1986 and February 1987. The defendant did not give evidence and did not adduce any evidence to dispute the occurrence of the assaults.

Pursuant to s 178 of the Evidence Act 1995 (NSW) the plaintiff also relied on a certificate of conviction which disclosed that the defendant had in previous proceedings been found criminally responsible for many of the allegations put forward in the civil claim. The certificate referred to the defendant having been convicted of multiple indecent assaults of a person under authority and soliciting a male under 18 to commit homosexual intercourse for the alleged acts against the plaintiff.

Impact on the plaintiff

After the plaintiff stopped working at the cinema and ceased having contact with the defendant, he developed addictions to alcohol, cigarettes, and pornography. He became obsessive about keeping control of his life and privacy, and lost all sense of direction and ambition. The plaintiff indicated that these factors had a negative impact on all his social relationships, his career and entire life.

Observations by the plaintiff’s family at the time of the assaults evidenced a young man who had been sociable, scholastic and interested turn into someone who ceased to apply himself in his education and became socially withdrawn, moody, angry and indifferent to his previous sports and hobbies. Statements given by subsequent employers described the plaintiff as someone who was an average and sometimes careless worker who was only capable of performing work that was simplistic and repetitive in nature. His ex-wife and children described the plaintiff as being uninterested, unemotional, and disconnected from life, and who struggled with his emotions and personal conflict.

Two psychiatrists gave evidence at the trial and prepared a joint conclave report. Both psychiatrists agreed that the plaintiff suffered from persistent depressive disorder and that he had developed episodic alcohol use disorder since the assaults. However, whilst the plaintiff’s psychiatrist was of the opinion that the sexual assaults contributed to the plaintiff’s persistent depressive disorder, the defendant’s psychiatrist expressed the view that the assaults were only one contributing factor among many. Other factors that made a significant contribution to the plaintiff’s presentation included alcoholism and bipolar disorder, his combative relationship with his parents, his son’s 2009 traumatic brain injury, difficulties in various relationships and his partner’s own psychiatric disorder.

The decision at trial

The NSW Supreme Court:

  • Found the defendant liable and accepted the plaintiff’s evidence in respect of the occurrence of four of the alleged seven assaults.
  • Held that the sexual assaults were causative of the plaintiff’s psychiatric disorders. In reaching this conclusion, the Court preferred the evidence of the plaintiff’s psychiatrist and gave significant weight to the evidence indicating that the plaintiff first began to demonstrate psychiatric symptomology around the time of the assaults, and had displayed no mental health issues before that time.
  • Held that section 3B(1)(a) of the Civil Liability Act 2002 (NSW) (which stipulates that the Act does not apply to civil liability from an intentional act that is a sexual assault) applies, which meant that the restrictions and limitations contained in that Act relating to the assessment of damages did not apply. Damages were therefore assessed at common law.
  • Awarded damages totalling $1,353,850.00 including $400,000 for general damages and $40,000 for aggravated damages.

Implications for you

In the absence of pre-existing problems or some other intervening event, courts will generally be inclined to accept expert evidence linking a plaintiff’s mental health problems with incidents of sexual abuse that occurred earlier in life. This emphasises the need to thoroughly investigate a plaintiff’s background and, if possible, obtain medical records that pre-date the alleged abuse. Such records might contain clues in respect of other issues that might be relevant to the development of psychiatric conditions later in life.

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