Recent Queensland damages award in historic abuse claim

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

The Queensland Supreme Court recently awarded damages in the amount of $1,456,524.15 to a plaintiff in relation to a claim for historic sexual abuse against his former schoolteacher.

In Issue

  • Ryan J was required to determine whether the plaintiff was sexually abused by the defendant as alleged. Upon accepting that the plaintiff was sexually abused, Ryan J was required to assess damages in the circumstances.

The background

The plaintiff brought a claim for damages for personal injuries sustained as a result of sexual abuse he alleged was committed by his schoolteacher (the defendant). The plaintiff alleged that their relationship commenced in his first year of high school, when he was 13 years of age, and that they had sexual intercourse by the time he was 14 years old. As a result of the abuse, the claimant was found to have suffered personal injury, namely a depressive disorder.

The decision at trial

The claim was against the perpetrator directly in tort for trespass to person (battery), rather than against the school. As such, principles of negligence and/or vicarious liability were not examined, and a finding of liability essentially fell on whether the claimant’s account was accepted. The essence of the dispute was whether the close relationship (acknowledged by both parties) was in fact sexual and/or romantic (in dispute between parties). The plaintiff’s account was ultimately accepted, and in short, Ryan J was influenced by the following:

  • A finding that the claimant was, on the whole, a credible witness;
  • The existence of contemporaneous evidence (being notes taken by the school’s principal in relation to concerns raised at the time as well as notes exchanged between the plaintiff and the defendant);
  • Oral evidence of former students; and
  • Oral evidence of the plaintiff’s parents.

The decision in that respect was somewhat case specific and does not necessarily impact any precedent as to liability relevant to insurers of institutions. Worth mention, however, were the comments by Ryan J that any theory advanced that a “genuine” victim of sexual abuse would complain at the “first reasonable opportunity” has “long been debunked”.

There have been few recent decisions assessing damages for historic abuse matters in Queensland, and so Ryan J’s comments in that regard are arguably of greater interest to insurers.

The medical evidence of two psychiatrists concluded that the plaintiff suffered from persistent depressive disorder; alcohol use disorder and oppositional defiance disorder (ODD) in remission; with significant personality dysfunction. The ODD was opined to exist prior to the subject abuse. In addressing causation, namely as concerned the contribution of the ODD to the plaintiff’s symptoms, Ryan J considered the issues of disentanglement as set out in Mount Arthur Coal Pty Ltd v Duffin. In considering the evidence, Ryan J was ultimately not persuaded of any link to indicate the symptoms and impacts suffered by the plaintiff since the abuse emerged as a consequence of his ODD.

As to general damages, Ryan J awarded $65,000 which took into account violation of personal integrity. A higher award of $150,000 was submitted by the plaintiff with reference to a NSW decision, whilst the defendant submitted a lower award of $50,000 with reference to a previous QLD decision. Ryan J’s view was that the award made should align with those previously made in QLD rather than in other jurisdictions. Interest was awarded on this sum at 2% per annum over 25 years (being from 1996 to date of judgment).

As to past economic loss, Ryan J acknowledged the inherent difficulties in reliably predicting occupational outcomes where injury is sustained early in life. Ryan J was satisfied, however, that the plaintiff’s inability to obtain employment and hold down a job were consequences of his psychological injury. Absent this, Ryan J held that the plaintiff would have maintained consistent employment. Reliance was placed on the plaintiff’s evidence as to his employment history, demonstrating that he was otherwise a driven and attractive prospective employee. Due to uncertainty, reference was made to male average weekly earnings. An award of $613,292 was made for past economic loss. To this amount, interest at 4% per annum was awarded, totalling $376,070.65.

As to future economic loss, Ryan J relied on the plaintiff’s medical evidence, which concluded that his symptoms would likely wax and wane over time, and accordingly, an award of $260,086.40 was made, factoring a 30% reduction in earning capacity, and a discount of 15% for vicissitudes.

The court awarded aggravated damages due to the defendant’s position of power and trust over the plaintiff, as well as her denial of the accusations and the impact that then had on the plaintiff’s ability to be adequately supported. The defendant’s conduct throughout the litigation was also considered aggravating. An award was made for $43,750, comprising $35,000 with interest at 2% on half the award over 25 years.

An amount for exemplary damages was also awarded in the sum of $15,000, representative of the defendant’s selfish conduct in pursuing the plaintiff. This amount was less than the award for aggravated damages, so as to ensure the plaintiff was not twice compensated for elements of the defendant’s conduct already covered by the award for aggravated damages.

Overall damages were set off by $100,000, representative of a $150,000 compensation payment previously made by the school, less the portion of which was taken in legal fees. Judgment was entered for the plaintiff in the sum of $1,456,524.15.

Implications for you

Although the overall sum may at first glance suggest a shift towards higher settlements for historic abuse claims, Ryan J’s reasoning does not incite any new or changed views to the common law as traditionally applied in Queensland. Notably, Ryan J affirmed that awards for general damages should not follow those made in other jurisdictions, which are often more generous. The success of future cases will likely continue to depend on the strength of their evidence, noting the level of supportive evidence present in this case.

As to the award of interest for general damages, it is worth pointing out that Ryan J relied on P v R [2010] QSC 139. In that case, interest was awarded at 2% per annum, on 50% of the award for general damages. Other cases have adopted different figures, but there has always appeared to be a common view that interest is only claimable on a past component. The judgment offers no reason as to why a similar approach was not followed, and it is unclear how this will be addressed in future cases.

This judgment also serves as an uncontroversial but valuable reminder of the importance of supportive evidence. Much of the defendant’s submissions failed as they could not be further particularised or substantiated by any evidence. This included numerous failures to comply with the Browne v Dunn rule, which necessitates putting to a witness any evidence you intend to call on to contradict that witness.

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