Quantifying damages in historical sexual assault claims

28 October 2021
Warning: This article contains details about sexual abuse which may be upsetting for some readers. Reader discretion is advised.

In Issue

  • The difficulties faced when quantifying loss in historic sexual assault cases particularly in the absence of contemporaneous evidence; and
  • Assumptions by experts which are unsupported and/or contradictory to the available evidence.

The background

The plaintiff claimed damages for sexual assault alleged to have been committed in 1985, when he was 16.5 years of age. On the evening of the abuse, the defendant plied the plaintiff with alcohol and organised for him to stay at his residence where he committed 3 acts of assault.

Following the assaults, the plaintiff completed his high school education and enrolled in the military only to resign from his training at Duntroon approximately 3 months later. Between mid-1987 and 2012, the plaintiff was consistently employed in various roles, although the length of employment was typically short. In or around 2012, the plaintiff was officially diagnosed with depression and anxiety and has been on a disability pension since approximately 2013.

Prior to the civil trial, the defendant was convicted of a series of historical sexual assault charges including those involving plaintiff. Although the defendant’s conviction was an agreed fact in the proceedings, the defendant denied the conduct alleged by the plaintiff.

The plaintiff claimed that he developed a psychiatric injury and suffered significant loss as a result of the abuse. The plaintiff’s quantification of damages was $7 million. The defendant declared bankruptcy prior to the commencement of trial. Due to his bankruptcy, the defendant’s Counsel withdrew from the proceedings. The defendant was subsequently represented by his solicitor alone.

The decision at trial

The trial judge accepted that the defendant committed the alleged assaults on the plaintiff.

The assessment of damages was complicated by the medico-legal evidence. Both medical experts made assumptions and drew conclusions which were not supported by other evidence. For example, Dr John Baker, consultant psychiatrist, considered that the plaintiff developed a psychiatric injury immediately following the assaults, which he opined was evidenced by a decline in the plaintiff’s performance at school. However, the plaintiff’s school records indicated that his results following the abuse were consistent with those pre-dating the assaults. The plaintiff’s own evidence also contradicted Dr Baker’s conclusion. Conversely, Dr Apler, consultant psychiatrist, considered that the plaintiff developed a psychiatric illness 18 months following the assaults. Dr Apler came to this conclusion by reference to the plaintiff’s resignation from the military and other minor military infractions. However, the plaintiff’s records from Duntroon, including his psychiatric evidence, did not support Dr Apler’s opinion.

While the trial judge acknowledged that the absence of evidence regarding the plaintiff’s emotional and mental state did not mean that he did not suffer from any psychiatric injury as alleged, it was found that the records and the plaintiff’s own testimony detracted from his propositions and contradicted the medical evidence.

The trial judge ultimately found that the plaintiff developed a psychiatric condition many years later, in or around 2012 when he was compelled to relive and confront the events and his abuser in the protracted and contested criminal and civil proceedings.

The total judgment awarded was $1,273,125.00, including a component for aggravated damages.

The trial judge denied the plaintiff’s request for use of a pseudonym pursuant to section 8(1)(a) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (as opposed to a non-publication order which is common in historic abuse cases), on the basis that he failed to adduce evidence that the use of a pseudonym was necessary to either prevent prejudice to the proper administration of justice or outweighed the public interest in open justice.

Implications for you

This case demonstrates the inherent difficulty in quantifying losses in historic sexual assault cases. The absence of reports of abuse and corroborating evidence is generally not surprising in these types of matters. That said, a Court does not ignore available evidence on the victim’s behaviour or conduct which is typically indicative/consistent with the effects of suffering abuse.

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