Warning: This article contains details about child sexual abuse which may be upsetting for some readers. Reader discretion is advised.
The NSW Supreme Court assessed the plaintiff’s damages as a consequence of the perpetrator’s conduct at $1,832,900 in a default judgment.
In issue
- Whether the plaintiff had proved the alleged abuse
- The extent to which the plaintiff’s psychological injuries were caused by factors other than the alleged abuse
- The assessment of damages payable by the perpetrator to the plaintiff as a result of the perpetrator’s conduct
The background
The Plaintiff, a former ward of the State of New South Wales, commenced proceedings against the State (First Defendant), her former guardian (Second Defendant) and the guardian’s son (Third Defendant) in relation to allegations of historical child sexual assault dating back to the mid-1970s and early 1980s. The Plaintiff sought damages for injuries, loss and damage caused by the alleged abuse, including damages for economic loss.
The Plaintiff resolved her claim against the First Defendant and orders finalising the claim had been made. Consequently, the First Defendant was no longer involved in the proceeding. The Second Defendant had died since the commencement of the proceedings, and proceedings were not continued against her estate after her death.
The Third Defendant was sued on the basis that whilst the Plaintiff was living with the guardian, the Third Defendant, who was also living in the same house, sexually assaulted and abused the Plaintiff over a period of five years between 1975 and 1980.
The Third Defendant did not file a defence nor make an appearance, and the Court entered judgment for the Plaintiff with damages to be assessed.
The decision at trial
Alleged abuse
The facts were drawn from the Plaintiff’s statement, witness statements and contemporaneous documents. As the contents of the statements were not challenged by the Third Defendant, the court held that it had no reason to reject any part of the Plaintiff’s statement and accepted that the alleged abuse occurred. The court added that if there was any inconsistency in the Plaintiff’s memory compared with the contemporaneous documents, the court would have regard to the contemporaneous documents as they were likely to be more accurate, particularly as to details of dates, times and places.
The court also accepted the independent psychiatrist’s report on the Plaintiff which stated the sexual abuse perpetrated by the Third Defendant was a major significant contributing factor to the development of her psychiatric injuries.
Causation
While the court accepted that the sexual abuse of the Plaintiff by the Third Defendant materially contributed to the Plaintiff’s injuries, the Court also considered that there had been a series of adverse events in the Plaintiff’s life unrelated to the abuse that also contributed to the Plaintiff’s psychiatric condition and impacted upon the Plaintiff’s capacity to engage in full-time employment. Other adverse traumatic life events prior to and after the abuse included the sudden and traumatic death of her mother (murdered by her alleged biological father), the Plaintiff’s marital breakdown and her chronic pain condition that caused the Plaintiff to cease working.
Quantum
As the Third Defendant was found directly liable for the abuse, damages were assessed at common law rather than under the Civil Liability Act 2002 (NSW). The Court ultimately assessed the Plaintiff’s damages as a consequence of the Third Defendant’s conduct at $1,832,900, calculated as follows:
- General damages (including interest): $600,000
- Past loss of earning capacity (including interest): $1,000,000. The Court made no allowance for any future loss of earning capacity given the Plaintiff’s chronic pain condition which prohibited her from working was not caused or related to the sexual abuse by the Third Defendant.
- Loss of superannuation: $200,000.
- Cost of future psychological treatment: $32,900. The Court entirely accepted the costs put forward by the Plaintiff following recommendations in the independent psychiatrist’s report.
The court also ordered the Third Defendant to pay the plaintiff’s costs of the proceedings.
Implications for you
This decision is a reminder of the factors that the Court will consider when determining appropriate awards of damages and illustrates that a significant award is possible even in circumstances of unrelated severe trauma and adversity.
