Victims of historical abuse receive damages: Court assesses an appropriate award and apportions damages as between a perpetrator and their employer

25 May 2020

Two decisions relevant to historical abuse claims were recently handed down. In one, the New South Wales District Court was asked to assess damages where default judgment was entered against the stepfather defendant. In the other, the Victorian Supreme Court assessed the settlement sum paid by a school direct to a plaintiff student and determined the school’s claim for contribution from the teacher defendant against whom interlocutory judgment had been entered on default of Appearance.

In Issue

In the New South Wales case, interest, general damages and aggravated damages were assessed. In the Victorian case, the settlement sum paid by the second defendant school was assessed. However, the court then had to embark upon an assessment of what was a fair and just apportionment between the school and the teacher.

New South Wales District Court: KS V GR [2020] NSWDC 73

The background

The claim as pleaded involved alleged acts of indecency, sexual assault, sexual abuse and/or battery between 1955 to 1967 against a two to fourteen year old plaintiff. The defendant served 12 months in jail in 1997. The adult plaintiff suffered post-traumatic stress disorder, major depression or persistent depressive disorder, and an adjustment-like disorder.

The decision

The Court made a total damages award to the plaintiff of $622,182.

The plaintiff was awarded $300,000 in general damages, comprising $75,000 for future damages and $225,000 for past damages (on which interest was awarded on the latter at 2% per annum for the relevant period).

An award of $50,000 was also considered appropriate for aggravated damages, without any double dipping, given the serious conduct of the defendant, the insult to the plaintiff and the humiliation as a child by her stepfather.

Finally an award of $30,890 for future out of pocket expenses was also made, along with an order that the defendant pay the plaintiff’s costs as agreed or assessed.

Victorian Supreme Court: Shuttleworth v Morris & Anor [2020] VSC 143

The background

The defendant school settled a claim made by a student in the sum of $500,000 plus costs. The school claimed contribution from the defendant teacher pursuant to the Wrongs Act 1958 (Vic) and/or an indemnity or damages for breach of his employment contract.

The decision at trial

The Court had little difficulty accepting that a settlement figure in the order of $500,000 plus costs was not excessive, given the plaintiff could potentially have had an economic loss in the order of $1.3 million on account of an early departure from education and poor occupational advancement.

Having identified breaches of duty by the school authority, the court ultimately apportioned liability 85% to the teacher and 15% to the school authority. In doing so the Court compared the culpability and the relative importance of the acts of the teacher and the school to the injury, loss and damage suffered by the student plaintiff. In regards to the teacher, the deliberate nature of the acts committed by him was central to the plaintiff student’s continuing psychological injury. In regards to the school, the court ultimately decided that it did not have an adequate system of supervision and monitoring in place in 1967. Further, the transfer of the teacher from a previous school was made without due regard to any specific risk to students on account of past conduct of the transferred teacher. Accordingly, the school was entitled to recover contribution from the teacher of $478,550 (being 85% of $563,000).

The school also claimed an indemnity from the teacher, on the basis of alleged breach of his employment agreement. In Victoria, at common law, an employer may seek indemnity from an employee pursuant to a breach of employment contract1. The Court however held that it was not appropriate to order the teacher to indemnify the school authority in circumstances where the school authority had its own direct liability to the plaintiff. Although the school was entitled to damages for breach of contract, any such damages would in any case mirror the amount that the teacher must contribute to the settlement amount paid to the plaintiff i.e. by way of contribution.

Although the school authority sought its costs of defending the plaintiff’s proceeding, and its costs of the contribution proceeding against the teacher, the Court applied the ‘usual practice’ in such contribution proceedings that each party bear their own costs i.e. with no outright win by the school and in the absence of an offer of contribution under the Court rules or a Calderbank offer.

Implications for you

These decisions are a reminder of the factors that the Court will consider when deciding upon appropriate awards of damages, and issues of apportionment and contribution, in cases involving historical abuse .

KS v GR [2020] NSWDC 73
Shuttleworth v Morris & Anor [2020] VSC 143

1 However, this common law rule was changed by statute in New South Wales, Northern Territory and South Australia. The abrogation refers to employees guilty of serious and wilful misconduct.

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