SA v CH & LH – an assessment of damages

30 May 2022
Warning: This article contains details about sexual assault and abuse which may be upsetting for some readers. Reader discretion is advised.

With no appearance from the defendants, upon hearing evidence of the impact that historical sexual abuse has had on the plaintiff’s life, the court assessed the damages to be awarded.

In Issue

  • What is the plaintiff’s entitlement to damages for historical sexual abuse, including entitlement to aggravated and exemplary damages?

The background

The plaintiff made a claim against two defendants for historical sexual assaults against him when he was eight years old. The defendants are brothers and neighbours of the plaintiff who had previously been criminally convicted of sexual offences committed upon the plaintiff. They did not serve terms of imprisonment. The plaintiff prepared a victim statement and provided evidence of the impact the abuse has had on him. The defendants did not appear.

The plaintiff gave evidence that the abuse had a deleterious effect on many aspects of his life including education, employment and relationships. Stephanie Lindsay, a social worker, said the plaintiff presented with many of the developmental consequences that are recognised as being common to childhood sexual abuse. Dr Peter Klug diagnosed the plaintiff with chronic post-traumatic stress disorder which he attributed to the abuse.

The decision at trial

The court accepted evidence that the impact of the abuse on the plaintiff was devastating and as such he was entitled to significant damages. The court in its assessment of damages assessed both defendants separately although ultimately damages awarded against each defendant were identical.

As against both defendants, the plaintiff was entitled to $150,000 for general damages which included aggravated damages. Of that sum, the court awarded interest on $50,000 at 2 per cent over 10 years totalling $10,000. The court found it was not possible to precisely calculate the plaintiff’s loss of earning capacity because of the intermittent nature of that loss in the past, which continues into the future. It therefore awarded a buffer of $75,000. For future treatment it awarded a buffer of $15,000 based upon Dr Klug’s recommendations. Finally, it considered the conduct of the defendants against the plaintiff as being in contumelious disregard for his right to autonomy and personal well being and, in those circumstances, awarded exemplary damages in the sum of $75,000.

The plaintiff was therefore awarded the total sum of $325,000 against each defendant, or $650,000 in total.

Implications for you

Even in circumstances where a Court cannot precisely calculate loss of past and future economic loss, it will not be precluded from making an award of damages. This case also offers an example as to how interest on general damages may be awarded in historical sexual abuse claims (subject to State specific legislation) as well as when a Court may deem it appropriate to award exemplary damages.

SA v CH & LH (Pseudonyms) [2022] NSWDC 140

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