Warning: This article contains details about sexual assault and abuse which may be upsetting for some readers. Reader discretion is advised.
The Plaintiff was subject to sexual abuse from the age of 14 and 15 from the Defendant. The Plaintiff was awarded damages in the amount of $1,416,829.85 in the Supreme Court of New South Wales.
- Whether the Plaintiff was sexually abused by the Defendant as alleged, and if so, whether the Plaintiff was entitled to damages and the measure of damages payable to the Plaintiff.
The Plaintiff was sexually abused and sexually assaulted by the Defendant between 2010 and 2012, when the Plaintiff was 14 and 15 years of age. Most of these events occurred at the Defendant’s then home in Tathra, NSW, and some events occurred in the Defendant’s car. The Plaintiff knew the Defendant through a good friend he met at school, whose family was friends with the Defendant.
On 13 March 2018, the Plaintiff gave a statement to South Australian police in connection with the Defendant. The Defendant was prosecuted following the complaint made and was convicted and sentenced.
On 8 February 2022, the Plaintiff commenced proceedings in the Supreme Court of New South Wales seeking compensation for pain and suffering and loss and damage. The Defendant initially filed a defence making a number of admissions in connection with some of the offending conduct pleaded by the Plaintiff, but later withdrew his defence, and did not participate in the hearing of the Plaintiff’s claim in any manner.
The decision at trial
Although the Defendant did not participate in the hearing, the Court was still required to investigate the merits of the Plaintiff’s case, and the Plaintiff was required to prove his case on the balance of probabilities in the usual way. The Plaintiff sought to rely on the incidents and allegations of abuse to support causes of action expressed as trespass to the person.
The Court accepted that the alleged abuse occurred, and in turn, found that the Plaintiff was entitled to succeed in the causes of action of battery and assault. The Judge accepted the Plaintiff’s evidence 'unreservedly', which was strengthened by the fact that the Plaintiff gave consistent versions of his abuse, he took steps to formalise a complaint with the police and provided a statement in support, which significantly added to his credibility and account. Further, the Defendant withdrew his defence and did not participate in any way in the hearing and admitted his conduct as part of the criminal prosecution which significantly added weight in favour of the Plaintiff.
The Court decided the Plaintiff was entitled to damages. In assessing the Plaintiff’s entitlement, the Court decided Part 2 of the Civil Liability Act 2002 (NSW) did not apply because the Court had accepted the Plaintiff’s version of events, and because liability of the Defendant is civil liability in respect of sexual assault or other sexual misconduct, which is assessed at common law. The Plaintiff sought general damages, damages for loss of earning capacity and consequent loss of superannuation entitlements, damages for future medical and out-of-pocket expenses and aggravated and exemplary damages. The Court ultimately awarded $1,416,829.85 which comprised the following:
- General Damages (including aggravated and exemplary damages and interest): $526,000.00. When assessing this amount, the Court found that the abuse had profound effects on the Plaintiff, who experienced inner turmoil on an ongoing basis from the time that the abuse was inflicted upon him.
- Loss of Earning Capacity (past and future, including superannuation): $880,379. Despite the Plaintiff being able to complete his schooling, the Court considered this was a testament to his self-declared ability, to ‘just block things out and get through’, and this reflected favourably on the Plaintiff. The Plaintiff’s struggle to complete his undergraduate mechanical engineering degree demonstrated a diminution in his earning capacity.
- Future-out-of-pocket expenses: $10,450.
The Court deemed it appropriate to award the Plaintiff aggravated damages, satisfied that the Defendant’s conduct amounted to 'conscious wrongdoing in contumelious disregard to the Plaintiff’s rights' over an extended period of time. The Court was also satisfied that the abuse caused injury to the Plaintiff’s feelings, including by the manner in which the acts were perpetrated upon him. The Court also deemed it appropriate to award the Plaintiff exemplary damages, satisfied such award was justified to fulfill the objectives of punishment, deterrence, and condemnation of the sexual abuse of a child.
Implications for you
This decision demonstrates that the Courts are willing to award damages at the higher end of the scale to victims of sexual abuse. This case also provides a helpful analysis of the law of battery and assault in the context of sexual abuse cases.