Damages Assessment of Abuse Claims

05 March 2020

The Victorian Supreme Court was required to assess damages for institutional child sexual abuse in circumstances where other tortfeasors had paid damages for the same abuse and there had been earlier abuse by a different perpetrator.

In Issue

The following issues were considered in the Court’s assessment of pecuniary and non-pecuniary loss:

  1. the assessment of damages against a tortfeasor in circumstances where the other tortfeasors have paid damages for the same injury;
  2. the effect of earlier abuse on the assessment of damages; and
  3. the plaintiff’s entitlement to recover exemplary and/or aggravated damages from the perpetrator of sexual abuse.

The background

The plaintiff, Menahem Waks, alleged he was subject to childhood institutional sexual abuse by Mr Cyprys, an employee at Yeshivah College in Elwood. The assaults were endured by the plaintiff between the ages of 13 and 14 years (subject abuse). The plaintiff also alleged sexual abuse at the age of 11 years for a six-month period by a different perpetrator associated with Yeshivah College (earlier abuse).

Proceedings were issued against twelve defendants associated with Yeshivah Centre and Yeshivah College. Eleven of these defendants settled with the plaintiff at mediation. The plaintiff sought judgment against the remaining defendant, Mr Cyprys, following his failure to file a defence. This case involved an assessment of damages against Mr Cyprys.

The decision at trial

The Court accepted all defendants were jointly and severally liable for their individual breaches. With regard to compensation already paid by the other defendants, the Court considered that account must be taken of the settlement sum for which adjustment must be made in the judgment to be entered. The Court directed that the parties would be heard on that issue.

The failure to obtain evidence regarding the impacts of the earlier abuse on the plaintiff’s work capacity and enjoyment of life meant the Court accepted the plaintiff’s psychiatric injury was predominately attributable to the subject abuse. However, the Court acknowledged it could not ignore the impacts of earlier abuse to quantify loss of earning capacity and addressed this via the reduction for vicissitudes, assessed at 30%.

The Court noted it had no discretion to award exemplary damages, an award intended to punish the defendant, in circumstances where the defendant had already been punished for the subject abuse via his conviction and sentence in the criminal justice system. With regard to aggravated damages, an award imposed to “redress indignity and humiliation caused by reprehensible conduct”, the Court found the abuse itself is likely to cause humiliation and distress. The plaintiff submitted that, amongst other things, the circumstances of the subject abuse increased the indignity and humiliation due to its occurrence at a site of spiritual significance (synagogue baths) and in the presence/close proximity of classmates and siblings. However, the Court found there was no evidence the assaults caused suffering to the plaintiff beyond that which he was already compensated for.

The plaintiff was awarded damages of $804,170, comprising: $62,348 for past and future medical and like expenses; $200,000 for general damages; and $541,822 for past and future loss of earning capacity (inclusive of superannuation).

Implications for you

This decision suggests that the failure of a defendant or defendants to engage in the litigation process ought not preclude other parties from attempting to resolve the matter for their contribution prior to trial, and that settlement payments made for the same injury may be considered by the Court to adjust its assessment of damages against any remaining defendants.

Waks v Cyprys & Ors [2020] VSC 44

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