B P v K R

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
B P v K R & ANOR
[2025] SASC 58
Judgment of the Honourable Auxiliary Associate Justice Costello
DAMAGES - PARTICULAR AWARDS OF GENERAL DAMAGES - SOUTH AUSTRALIA
TORTS - INTERFERENCE WITH THE PERSON - TRESPASS TO THE PERSON - DAMAGES
Claim by applicant for damages for trespass to the person (battery) and negligence - historical sexual abuse - judgment entered against respondents in default of a defence - non-application of Civil Liability Act 1936 - damages assessed in accordance with common law principles - sexual abuse perpetrated against applicant both as a child and young adult - impact of judgment in default on issues of consent and claim "out of time" - relevance of and approach to application of interstate courts' awards for general damages for non-economic loss - consideration of awards of interest for pre-trial non-economic loss and for aggravated damages considered.
Uniform Civil Rules 2020 (SA) r 142; Limitation of Actions Act 1936 (SA) s 3A; Civil Liability Act 1936 (SA) ss 4 and 51; Supreme Court Act 1935 (SA) s 30C, referred to.
Carter & Anor v Walker & Anor (2010) 32 VR 1 at [215]; Watts v Rake (1960) 108 CLR 158; Gray v Motor Accident Commission (1998) 196 CLR 1; BHP Billiton Ltd v Hamilton & Anor (2013) 117 SASR 329; Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; Erlich v Leifer & Anor [2015] VSC 499; Hand v Morris & Anor [2017] VSC 437; TB v State of New South Wales; DC v State of New South Wales [2015] NSWSC 575; DC v State of New South Wales [2016] NSWCA 198; Gersbach v Gersbach [2018] NSWSC 1685; PCB v Geelong College [2021] VSC 633; Lawrence v Province Leader of Oceania Province of Congregation of Christian Brothers [2020] WADC 27; ZAB v ZWM [2021] TASSC 64; O’Connor v Comensoli [2022] VSC 313; Mirosevich v Laughlan [2022] NSWSC 1103; PP v DD (No 2) [2021] NSWSC 1312; Footscray Football Club Ltd v Kneale [2024] VSCA 314; S, M v S, RK [2019] SADC 184; Ewins v BHP Billiton Ltd (2005) 91 SASR 303; Grincelis v House (2000) 201 CLR 321; MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; Wheeler v Page (1982) 31 SASR 1; Trevorrow v State of South Australia (No 6) [2008] SASC 4; Lamb v Cotogno (1987) 164 CLR 1; New South Wales v Riley [2003] NSWCA 208, considered.

B P v K R & ANOR
[2025] SASC 58
Introduction

This is a claim for damages for trespass to the person (battery) and negligence.
These causes of action are particularised in the applicant’s statement of claim (“the claim”) which relevantly provides as follows:
The Applicant was sexually abused by the First Respondent, when she was a child and a vulnerable adult. The Applicant suffered injury, loss and damage as a result of the sexual abuse perpetrated against her by the First Respondent.
The Applicant was sexually abused by the Second Respondent, when she was a vulnerable adult. The Applicant suffered injury, loss and damage as a result of the sexual abuse perpetrated against her by the Second Respondent.
The claim was served on the respondents (both of whom are in custody), by express post addressed to the Chief Executive of the Department for Correctional Services, in June 2024.
Judgment in default of filing defences was entered against each respondent on 17 December 2024.
The effect of the default judgment on these proceedings
Pursuant to UCR 142.2 an applicant is entitled to request a judgment in default of a defence against a respondent if the respondent is served with the claim documents; the respondent fails to file a defence within the time fixed; and the applicant files an affidavit of proof of service. These pre-requisites were satisfied in this case.
Pursuant to UCR 142.5, if an applicant’s claim is solely a monetary claim, the applicant may request judgment for an amount to be assessed.
UCR 142.9 then provides that, where the Registrar enters a default judgment for an amount to be assessed, the trial is to be conducted upon the basis that the respondent is not entitled to contest liability but can contest any issues involving causation, remoteness and the existence of any discretion as to quantum.
The ramifications of the default judgment are particularly relevant in this case because some of the sexual abuse perpetrated by the first respondent and all of the sexual abuse perpetrated by the second respondent occurred when the applicant was a young adult.
Whereas consent is not available as a defence to a claim for actionable battery when the applicant is a child, it may be raised where the applicant is an adult, albeit a young and vulnerable adult. However, consent is not available as a defence where the Registrar has entered judgment in default of a defence.
In a similar way, whereas by operation of s 3A of the Limitation of Actions Act 1936 no statutory limitation period operates to oust claims by a child, there is a limitation period for adult claims. However, the default judgment also arguably operates to preclude an “out of time” defence being raised in relation to the applicant’s “adult claims”.[1]
[1] In any event, it does not matter whether such a defence could still be available because as part of her claim, the applicant sought an extension of time within which to bring the claim based upon the contents of an expert medical report. Had it been necessary to make such an order, I am satisfied that the contents of that report are sufficient to ground a new material fact for the purposes of s 48 of the Limitation of Actions Act.
In the result, this matter has proceeded by way of an assessment of damages.
Background to the claim
The circumstances leading up to and involving the sexual abuse giving rise to the applicant’s causes of action against the respondents are conveniently summarised in the applicant’s written submissions, which relevantly provide:[2]
[2]    Applicant’s written submissions (FDN 15) at [2] and [10]-[13].
2. The Applicant was born on 8 June 1973, and is 51 years of age. She is married and has two daughters of that marriage, aged 15 and 19. She also has a daughter as a result of the sexual abuse perpetrated by the First Applicant [sic Respondent], who is now aged 31.
…
10. The abuse perpetrated by the Respondents is pleaded in the Claim (FDN1), and deemed to have been admitted by the Respondents.[3] The abuse pleaded constitutes a battery.
[3]    Corso v Arias Holdings Pty Ltd & Ors [2016] SADC 62, [17] (Slattery DCJ); S, M v S, RK [2019] SADC 184, [14] (Schammer DCJ).
11. The abuse commenced in June 1988, when the Applicant was 15 years of age and working at a [bakery] business owned by the First Respondent’s parents at the time.
12. In general terms, the First Respondent repeatedly sexually abused the Applicant on many occasions from the time she was 15 years of age and into young adulthood. The sexual abuse included:
12.1. the First Respondent digitally penetrating the Applicant’s vagina;[4]
[4] Affidavit of B P made on 28 March 2025 (FDN 10), BKP-001 at [8].
12.2. the First Respondent penetrating the Applicant’s vagina with his penis, first occurring in around July 1988 at the bakery.[5] Thereafter, as the Applicant reported to the Police, the First Respondent “raped me [ the Applicant] every day for months. He was forceful and rough every time’;[6]
[5]    Affidavit of B P made on 28 March 2025 (FDN 10), BKP-001 at [10]-[14], [18], [20], [21] and BKP-003 at [9] and [13].
[6] Affidavit of B P made on 28 March 2025 (FDN 10), BKP-001 at [14].
12.3. the First Respondent penetrating the Applicant’s vagina with his penis while he kissed Ms T R (nee …), another child;[7]
12.4. the First Respondent penetrating the Applicant’s vagina with his penis while the Second Respondent watched and / or kissed her;[8]
12.5. the First Respondent penetrating the Applicant’s vagina with objects, including an open sparkling wine bottle, candles, an ice cream shaped like a pencil and his fist, in a rough manner;[9]
12.6. the First Respondent asserting that a spirit persona named ‘Malcolm’ entered his body when he had sex with the Applicant;[10]
12.7. the First Respondent impregnating the Applicant;[11]
12.8. the First Respondent making sexual remarks to the Applicant and in front of the Applicant.[12]
13. In general terms, the Second Respondent sexually abused the Applicant on many occasions from the time the Applicant was a teenager and young adult (but no longer a child). The sexual abuse included:
13.1. the Second Respondent touching the Applicant’s vulva and vagina digitally;[13]
13.2. the Second Respondent kissing the Applicant while her vagina was being penetrated by the penis of the First Respondent;[14]
13.3. the Second Respondent penetrating the Applicant’s vagina and performing non-consensual sexual intercourse on the Applicant, during the period from May 1993 to September 1993 when the Applicant was 19 years of age.[15]
[7] Affidavit of B P made on 28 March 2025 (FDN 10), BKP-001 at [17].
[8]    Affidavit of B P made on 28 March 2025 (FDN 10), BKP-001 at [18] and [21].
[9]    Affidavit of B P made on 28 March 2025 (FDN 10), BKP-003 at [15] and BKP-005 at [25].
[10] Affidavit of B P made on 28 March 2025 (FDN 10), BKP-001 at [27].
[11] Affidavit of B P made on 28 March 2025 (FDN 10), BKP-001 at [32] and BKP-003 at Annexure G.
[12] Affidavit of B P made on 28 March 2025 (FDN 10), BKP-005 at [17], [18] and [21].
[13] Affidavit of B P made on 28 March 2025 (FDN 10), BKP-001 at [18].
[14] Affidavit of B P made on 28 March 2025 (FDN 10), BKP-001 at [21].
[15] Affidavit of B P made on 28 March 2025 (FDN 10), BKP-003 at [3].
The first respondent was convicted in the District Court for sexual abuse against a child being B P. He was also convicted in relation to offences against two other females.
In relation to his total offending, he was sentenced to 15 years imprisonment with a non-parole period of 12 years backdated to 8 December 2023 when he was taken into custody.
The second respondent was convicted and sentenced in relation to sexual offending against one of the other two females referred to above, but not the applicant. For her offending she was sentenced to 8 years imprisonment with a non-parole period of 4 years backdated to 8 December 2023. As such, as I said earlier, both respondents are currently in custody and have appeared from their respective prisons by AVL.
Although at one point in the proceedings the respondents had solicitors acting for them, by the time of the trial those solicitors had ceased to act. Accordingly, neither respondent was legally represented.
Two further preliminary issues
Battery
Although her claim was based on two causes of action, at trial, her claim was focussed on the intentional tort of battery. The elements of battery (relevantly for the purposes of the present case) were set out in detail by the Victorian Court of Appeal in Carter & Anor v Walker & Anor:[16]
[16] (2010) 32 VR 1 at [215].
…, it is desirable to state what we understand the law with respect to battery otherwise to be in Australia:
(1) it is a species of trespass to the person;
(2) it is a so-called “intentional” tort, but care needs to be taken in considering the intention which is relevant;
(3) as a starting point, it involves the defendant doing an act which causes physical contact with the plaintiff;
(4) the act must be voluntary, that is, directed by the defendant’s conscious mind;
(5) …, the act must have a direct rather than a consequential impact upon the plaintiff (of this, more later);
(6) it does not require that the defendant intend the plaintiff any harm, or that the plaintiff suffer harm in fact. It is actionable per se;
(7) if the act is voluntary, and the defendant “meant to do it” in the sense of meaning to contact the plaintiff, it will be relevantly intentional;
(8) it may be that an act should also be considered intentional if it is substantially certain that the act will result in contact with the plaintiff; and perhaps also if the act is reckless with respect to contact with the plaintiff. …;
…
(11) once battery is established, immediate harm and consequential damage are compensable. The boundary of entitlement is set by the conception of “natural and probable consequence” (or “result”). That appears to be a common control mechanism for intentional torts. …
(footnotes omitted)
Applying these principles to the present case, it is clear that each of the respondents committed battery against the applicant.
Quantum of the applicant’s damages
The ability for courts to award damages in South Australia is largely governed by the provisions of the Civil Liability Act 1936 (“CLA”).
Section 4 of the CLA provides:
4—Application of Act
(1) This Act is intended to apply to the exclusion of inconsistent laws of any other place to the determination of liability and the assessment of damages for harm arising from an accident occurring in this State. (my underlining)
(2) Subsection (1) is intended to extend, and not to limit in any way, the application of this Act in accordance with its terms.
(4) This Act does not affect a right to compensation under Part 4 of the Return to Work Act 2014.
“Harm” is defined in s 3 to include personal injury.
Part 8 of the CLA then deals with damages for personal injury. Section 51 provides:
51—Application of this Part
This Part applies—
(a) where damages are claimed for personal injury arising from—
(i) a motor accident (whether caused intentionally or unintentionally); or
(ii) an accident caused wholly or in part by—
(A) negligence; or
(B) some other unintentional tort on the part of a person other than the injured person; or
(C) a breach of a contractual duty of care; or
(b) where personal injury arising in the manner described in paragraph (a) results in death and damages are claimed under Part 5 for harm resulting from the death.
It may be seen from this section that, although the reach of the CLA is framed in very broad terms and is capable of encompassing the overwhelming bulk of claims for damages for civil wrongs, it does not catch a claim for damages for an intentional tort like battery.
As such, the Court’s assessments of this claim and others like it are to be made in accordance with ordinary common law principles and are not confined by the strictures imposed by Part 8 of the CLA.
The trial
On the hearing the applicant tendered an affidavit of personal injury particulars (FDN 9) and an affidavit setting out, in general terms, the non‑economic impacts of her abuse (FDN 10).
In FDN 10 she deposed to those impacts in the following terms:
11.I sustained a Post-Traumatic Stress Disorder as a result of the subject abuse perpetrated against me by the First Respondent and the Second Respondent, as diagnosed by Dr Jules Begg in his report dated 8 April 2024. …
12.In addition to sustaining a psychiatric disorder as a result of the subject sexual abuse, as diagnosed by Dr Begg, my sexual abuse experiences were occasioned at the commencement of the First Respondent and the Second Respondent engaging me in a relationship of coercive control, which led to me:
12.1.Living with the First Respondent and the Second Respondent for periods of time during my late teenage years and during my 20s in South Australia.
12.2.Living near the First Respondent and the Second Respondent in Tasmania.
12.3.Being isolated from my family of origin.
12.4.Birthing a child, “J”, fathered by the First Respondent, on 30 June 1994.
12.5.Being subjected to the First Respondent and the Second Respondent threatening me in relation to J’s safety or me having contact with J.
12.6.Not being allowed to choose the name of my daughter fathered by the First Respondent.
12.7.Being exposed to the Second Respondent engaging with J in a verbally, physically and emotionally abusive and neglectful manner.
12.8.Being ‘put down’ and verbally abused consistently by the Second Respondent.
12.9.Having to extricate myself from the control of the First Respondent and Second Respondent.
12.10.Having a family law dispute with the First Respondent and Second Respondent in relation to J, which ultimately led to me having very little contact with her.
13.I feel ‘gutted’ that I do not have a close relationship with J. Instead, it feels like I completely lost J, as I have had such little contact with her. It was torture to me.
14.I also feel ‘gutted’ that my mother did not get to meet J.
15.When living with the First Respondent and the Second Respondent, I was required to perform heavy chores (even when I was pregnant) and was housed in poor living conditions; I essentially lived in a caravan on the property of the First Respondent and the Second Respondent while living on their property Tumby Bay, rather than being in the main house.
16.The trajectory of my life was altered due to the sexual abuse and the control exercised over me by the First Respondent and the Second Respondent. I did not start ‘living my life’ until I extracted myself from the situation contrived by the First Respondent and the Second Respondent.
17.I am distrustful of people and have few friends.
18.I am extremely protective of my two children fathered by my husband.
19.My distrust of people has reduced my amenity of life, as I do not socialise or leave the house without a purpose or easily. I would rather stay at home.
20.I still have thoughts and memories of the subject sexual abuse, which makes sleeping difficult.
21.The thoughts and memories of the subject sexual abuse, make sexual activity with my husband difficult. That causes stress with my marriage.
22.I am fearful of running into members of the R family (such as children of the First Respondent and the Second Respondent). I am fearful that they might do or say something to my children.
In her oral evidence in chief the applicant said she was born in 1973. She is currently 51 years old. She described her childhood growing up on the farm with her parents and three siblings as a “really good childhood”.
She said she completed primary school and half of year 10 at high school before leaving because she didn’t much like school and wanted to work on the family farm with her dad.
In April 1988, while aged 14, she was sent to a local bakery (“the bakery”) by her parents for work experience. Her parents knew the first respondent’s parents who were operating the bakery at that time. The bakery was the scene of the first sexual assault on her by the first respondent.
She identified the first occasion when that sexual abuse took place by reference to her statement to the police, which was exhibit BKP-001 to her affidavit in these proceedings (FDN 10). She said that on this first occasion she had just turned 15.
She identified various other occasions when instances of sexual abuse took place at his hands and/or the hands of the second respondent by reference to exhibits BKP-002 and BKP-003 of FDN 10.
She said the sexual abuse continued until 1997 by which time she and the respondents had moved to Tasmania.
She said that after she gave birth to J in June 1994, the respondents kept J away from her and refused to let her bond with her child.
She said that she had had very little contact with J, now 31, over the years. Her last contact with her was in 2016.
She said that she did various jobs in Tasmania, some paid and some voluntary. In 2004 she met and subsequently married her husband with whom she has two daughters now aged 15 and 19 respectively.

Since returning to Adelaide in 2014 her family and marital relationship has improved markedly.
In 2016 she obtained work, as an Enrolled Nurse at the local hospital, which is work she is still doing and really enjoys. She had to study for some 18 months to complete her nursing qualifications. She intends to continue working for as long as possible.
She said that the sexual abuse had affected her “big time” in terms of her marriage, causing her to be over protective with her children, being unable to trust people and in terms of her intimacy with her husband.
She agreed with the observations made by Dr Begg in his expert report and said that, since the sexual abuse commenced, she is no longer “the happy-go-lucky person” she once was.
In terms of her psychological health, she said that she had counselling in Tasmania which she thought would be sufficient to enable her to get back to normal living, but that it didn’t. On returning to South Australia she attended the rape crisis centre and eventually, after talking to one of the other women raped by the first respondent, in 2017 reported the abuse to the police.
In more recent times, she has been seeing a psychologist with “Country Health”. She has benefited from those sessions and expects to see the psychologist again in the future on an “as needs” basis.
She said that she takes Lexapro medication (an anti-depressant) on a daily basis. She also anticipates seeing her general practitioner from time to time for advice on medication and general counselling.
In cross examination
The first respondent elected to cross examine the applicant. The second respondent did not.
The first respondent’s ability to effectively cross examine the applicant was hamstrung by his lack of legal training but equally, if not more so, by the restrictions placed upon him by the constraints of the default judgment against him.
He put to the applicant that he had had a good relationship with her for many years prior to them going to Tasmania and while in Tasmania. She did not agree.
Assessment of the applicant
I accept the evidence of the applicant, whom I found to be genuine, honest and forthright. I accept her evidence that over a number of years she felt trapped in a coercive relationship with the respondents, initially as a child. I also accept that into her adult years the coercive relationship continued with a feature of it being the regular episodes of sexual abuse against her by the respondents.
In my view, the fact that she maintained relatively close contact with them into adulthood was due largely to a desire on her part to maintain contact with her daughter rather than any sense of affection for them as suggested by the first respondent.
The maintenance of that contact is also arguably explicable in terms of the respective ages of the parties when the abuse commenced and the relative positions of power between them which, as I have observed, continued even after the applicant became an adult. During those latter years she was still a vulnerable adult in the thrall of much older adults, particularly the first respondent.
In general terms she gave her evidence in a somewhat detached and dispassionate fashion. I agree with Dr Begg that this is likely to be a defensive strategy due to her “fears of emotional expression”.
I accept that she is a stoic individual and someone who at times attempted to “play down” the horrors of her sexual abuse and who tried to focus on the positives.
Before leaving my assessment of the applicant, I pause to note that in some of the written material the applicant expressed concerns that “she would be judged by people in the community because of the court case”.
She has no reason to feel that way. She was a vulnerable young child when the sexual abuse commenced. She conducted herself with commendable dignity and restraint throughout the hearing. She is now, after many years of abuse, simply pursuing her lawful entitlement to compensation for the quite wicked treatment she sustained at the hands of the respondents.
She is rightfully worthy of this Court’s sympathy and understanding.
The applicant also relied upon the evidence of Dr Begg whose report was tendered (Exhibit A1).
In his report, prepared in April last year, Dr Begg recounts the applicant’s personal history in the following manner:
[The applicant] is a 50-year-old woman who lives with her husband. His ex-wife is the daughter of the perpetrators in this matter.
She has two daughters from her husband. They are currently aged 18 and 14. Her eldest daughter is often away from home, as she works with horses.
[The applicant] drives for 40 minutes to get to the nearby hospital, where she works as an Enrolled Nurse.
She is prescribed the antidepressant Lexapro 10 mg. She has been on this for over 13 years. Part of her reason for starting the medication was that her husband was having problems with his ex-wife, which was bringing stress into their relationship.
She takes thyroxine for hypothyroidism. She is on a moderately high dose (200 ug) and although her thyroid hormone levels are normal, she feels as if she’s not getting enough energy and she has difficulty sleeping. Medication is also used for reflux.
She doesn’t use alcohol, and she doesn’t use illicit drugs.
There was a family history of Post-Traumatic Stress Disorder affecting her sister, who was severely impacted by bushfires in 2015.
Prior to the abuse involved in this claim, she said that she was a happy-go-lucky young girl, who came from a loving family and who was known as being “the life of the party”. She said that she just thought that she was “normal”. There was no history of abuse prior to her contact with the perpetrators in this matter. She was sexually naïve, as it was a matter that wasn’t talked about in the family, and the sex education she received at school pertained predominantly to menstruation only.
The subject abuse started in 1988, when she was 15 years of age and started to work at the bakery. There was a gap of nine months when she returned home, but she then came back looking for work, and she lived in a caravan owned by the [male] perpetrator’s father, beside his house, where there was a continuation of the abuse. The abuse reduced when she moved to Tasmania (a move forced on her by the perpetrators) in August 1997, but there were some further episodes of abuse when [the first respondent] came to visit. In addition to the threats of violence, the main thing that he held over her was control of whether she would be able to see her daughter. She said that she was determined to be a part of her daughter’s life, and she would do anything to maintain some contact with her daughter.
Since the abuse by the perpetrators, there has been no further abuse in her life.
She said that the impact of the abuse on her has been “big time”. She has trouble trusting people. She judges people to reduce the risk that they will harm her. She’s not very open to people. She said there is a lot of hurt, and she fears that further abuse will occur. She remains fearful that the perpetrators will hurt her children, or (whilst they are in custody) have contacts who will hurt her children. She doesn’t believe that the perpetrators (or their family members) will take their sentencing lightly, and she believes that they will attempt to “get even” in the future.
At night time, she is nervous that there is someone outside of the home.
She is very emotional, often crying about both happy and sad events, but not knowing why she is crying.
There are chronic nightmares.
When her children were younger, she would often get up in the night to check that they were not being abused, even though rationally, she knew that was not occurring.
At times, she is depressed, but she said that the medication has been helpful.
She described how her father had died whilst she was working at the bakery, and how she had been prevented from going to see him because of work requirements, arriving after he had died. Anniversaries around his death (such as the date of his death and Father’s Day), are now tinged with both anger and sadness, as they act as reminders of how she was prevented from visiting him as he died because of the controlling behaviour of the perpetrators.
When her husband was struggling with his emotions, she accompanied him to his therapists, and they had four visits together, and she started taking medication. When she returned to South Australia in 2014, she received counselling from the rape crisis centre. To assist herself, she wrote down her feelings and life experiences, which extended to over 80 pages.
She said that going to Court regarding this matter hasn’t changed her symptoms.
She is very sad that she hasn’t been able to speak to her firstborn daughter, who has not spoken to her for 22 years. She feels that her opportunity to be a mother, for the first time in her life, was stolen by the perpetrators.
There continue to be significant difficulties with physical intimacy. She believes that the abuse by the perpetrator has physically damaged her, but she has been too afraid to have a gynaecological examination. Attempts at physical intimacy with her husband evoke traumatic memories.
She expressed concerns that she would be judged by people in the community because of the court case.
Dr Begg went on to detail her mental state on examination and to address various specific questions regarding her past and future psychiatric disorders and their sequalae. He said:
MENTAL STATE EXAMINATION
On mental state examination, [the applicant] was a pleasant neatly groomed woman. She gave a history in a controlled manner, appearing to be emotionally detached from some of the trauma history. (This is likely a defensive strategy, as she described her fears of emotional expression, and said that she can’t understand why, in some circumstances, she can be quite emotional, but for no reason that she can understand at the time.) She appeared to be interested in understanding herself and seeking therapy for recovery. Her affect was restricted in range. There were no perceptual or cognitive abnormalities. Her insight and judgement was appropriate.
OPINION
List of questions.
1.   Any past or present psychiatric disorder(s) suffered by our client.
There were no past psychiatric disorders.
Arising from the subject offence, there is a Post-Traumatic Stress Disorder (PTSD) in which fear-based re-experiencing, emotional, and behavioural symptoms have been predominant. This has been associated with an anhedonic mood state and negative cognitions. Arousal and reactive externalising symptoms were prominent. There were mild dissociative symptoms.
She now presents with continuing re-experiencing phenomena, and emotional restriction with mild depression, but minimal behavioural symptoms. There continue to be fears of retribution. She has a poor capacity for physical intimacy with her husband.
Although her emotions are generally restricted, at other times, she described an outpouring of emotions for reasons that she can’t understand. These occurrences represent dissociative experiences.
The stress she experienced due to her husband’s problems made a minor contribution to her symptoms. I would consider this to be no more than a 3% contribution to her current symptoms.
2.   The cause of any past or present psychiatric disorder(s).
The Post-Traumatic Stress Disorder is 97% due to her subject abuse and 3% due to her husband’s stresses relating to his ex-wife and children.
3.   If our client has sustained psychiatric disorder as a result of the subject abuse occasioned to her by [the first representation] and/or [the second respondent], your opinion as to:
3.1The effect of any psychiatric disorder suffered by our client on her educational achievements, both past and future.
She did not have the freedom to pursue further education whilst she was being abused. A few years after the abuse ended, she would have been able to engage in the educational system.
This should continue in the future.
3.2The effect of any psychiatric disorder suffered by our client on her capacity to work, both past and future.
She has been able to engage in the labour market and this should continue in the future.
3.3The effect of any psychiatric disorder suffered by our client on her ability to engage in and maintain personal relationships, both past and future.
Although there have been intimacy problems, which are distressing, at an interpersonal level, she has been able to maintain her relationship with her husband – a relationship that was described as being supportive and helpful.
She will keep her circle of friends small because of mistrust issues.
She has been able to maintain a relationship with her younger daughters, but she has not been able to have a relationship with her oldest daughter.
3.4The effect of any psychiatric disorder suffered by our client on her enjoyment of life, both past and future.
There is a reduction in her enjoyment of life due to the psychiatric disorder. She can be happy, but her life is always lived under the spectre of anxiety and fear of being hurt by other people.
4.   Whether our client is likely to have required in the past, and/or is likely to require in the future, medication and psychiatric and/or psychological treatment. Please include the likely duration and cost of any required treatment.
There has been minimal treatment.
Disorders of this nature require long-term treatment.
Consistent with the Australian Guidelines for the Prevention and Treatment of Post-Traumatic Stress Disorder, with regard to psychological interventions, there is a strong recommendation for Cognitive Processing Therapy (CPT), Cognitive Therapy (CT), Eye Movement Desensitisation and Reprocessing (EMDR), Prolonged Exposure (PE), or Trauma Focused CBT (TF-CBT). In cases such as [the applicant’s], usually, 20 sessions of one of these therapies are required. The therapy should be reasonably frequent (preferably, not more than a month apart) to create an intensity of therapy so that the gains learned in one session can be reinforced in the next session. Ideally, this would be weekly therapy, but often, due to scheduling requirements, less frequent contact is available.
I recommend that she continue with her antidepressant.
Prazosin should also be considered, as often nightmares (intrusion symptoms) and sleep disturbance (due to alterations in arousal) are resistant to pharmacological treatment. Prazosin is effective and safe in the treatment of nightmares and sleep disturbances associated with Post-Traumatic Stress Disorder, and it contributes to an improvement in overall clinical status without affecting blood pressure.
There is no reason to doubt Dr Begg’s opinion which I accept without hesitation.
The first respondent gave evidence. The second respondent elected not to.
First respondent
He gave somewhat discursive evidence which generally focussed on his assertions that when the applicant was a child he had had a normal, healthy, non‑sexual relationship with her which subsequently changed into a normal, healthy, sexual relationship but only after the applicant was over 17 years of age. He maintained and strongly protested his innocence with respect to any of the sexual offences for which he has been convicted.
He said that his move to Tasmania was prompted by the death of his son. He said that at all times he had encouraged the applicant to have a relationship with J.
He said that the applicant’s decision to press charges against him was motivated and instigated by criminal charges being brought by his daughter against the applicant’s husband.
Assessment of the first respondent
Much of his evidence involved hearsay and double hearsay. Regardless of that, it was largely irrelevant to the issues I need to determine.
However, where his evidence differed from that of the applicant (eg on when and whether the abuse occurred and his preventing contact with J) I prefer the evidence of the applicant.
The parties’ submissions
The applicant made submissions, both written and oral, which I will deal with in the Discussion below.
The first respondent also made submissions (albeit brief) which effectively were a regurgitation of his evidence. I have had regard to his submissions as part of the Discussion. The second respondent elected not to make any submissions.
Discussion
As this claim is for an assessment of damages, two issues fall for consideration and determination:
(i)Has the applicant’s post traumatic stress disorder been caused by the respondents’ intentional tort.
As I said earlier, I accept the evidence of Dr Begg on this issue. There is no doubt in my view that the applicant’s current psychiatric state was overwhelmingly (albeit not totally) caused by the abuse she sustained at the hands of the respondents. I also accept the applicant’s evidence that prior to the abuse she was a happy, contented child and that thereafter, and as a result, her life was devastated.
In accordance with established principles,[17] once the applicant establishes that the sexual abuse materially contributed to her injury (which on the evidence I accept that it has), the evidential burden shifts to the respondents to prove that the applicant’s condition is the result of a pre‑existing or subsequent condition which, in its natural progression, would have produced similar symptoms in any event.
[17] Watts v Rake (1960) 108 CLR 158.
The respondents have adduced no evidence on this issue. However, the evidence of Dr Begg is that a tiny component of her psychiatric injuries emanated from her husband’s stresses relating to his ex-wife and children. I will need to factor in that component when assessing her damages and discount that very small component accordingly.
(ii)The quantum of damages to which the applicant is entitled
I note at the outset that the applicant is not pursuing claims for economic loss, past and future or for exemplary damages. As to the latter, because substantial punishment has been inflicted upon the first respondent for substantially the same conduct as that which is the subject of this case, exemplary damages could not be awarded.[18] There is no warrant to consider the position of the second respondent in view of the applicant’s stance on this issue.
[18] Gray v Motor Accident Commission (1998) 196 CLR 1 at [40].
As such, her claim has been limited to damages for:
(a) Pain and suffering and loss of amenities;
(b) Interest on pre-trial, non-economic loss;
(c) Future treatment; and
(d) Aggravated damages.
Pain and suffering and loss of amenities
In the course of her submissions, the applicant directed the court’s attention to a number of decisions from interstate dealing with awards of general damages for non-economic loss in cases involving sexual abuse.
On the general issue of the relevance of interstate decisions, in BHP Billiton Ltd v Hamilton & Anor,[19] Blue J (with whom Kourakis CJ agreed) said:[20]
Accordingly, authority supports the conclusion reached in principle that it is permissible, and indeed desirable, to have appropriate regard to appropriate awards in comparable cases in other jurisdictions.
[19] (2013) 117 SASR 329.
[20] Ibid at [118].
However, in having regard to these decisions, I bear in mind what the High Court said in Planet Fisheries Pty Ltd v La Rosa:[21]
… The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. What was sought to be done in this case by the appellant's counsel, namely, to derive a norm or standard from a group of judgments of this Court reviewing awards of damages on appeal is erroneous. The same would be true if the same course were sought to be pursued in relation to awards of a Supreme Court or of a County or District Court. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. … (my emphasis)
[21] (1968) 119 CLR 118 at 125.

With this caveat in mind, I turn now to consider those cases.
In Erlich v Leifer & Anor[22] a 28-year-old plaintiff, who was sexually abused at school by her teacher and principal when she was about 15 and sustained psychiatric injury, was awarded general damages of $300,000. The sexual abuse involved digital penetration of the plaintiff's vagina and sucking of her breasts on a regular basis over a period of approximately three years in the mid-2000s. The plaintiff was diagnosed with PTSD in about 2010 and attended many counselling sessions. She had suicidal thoughts and exhibited self-harming behaviour. Her symptoms were described as severe. At trial the plaintiff's psychiatric condition had stabilised with medication and treatment but the prognosis was guarded. The trial judge found that the plaintiff suffered a major psychiatric illness which had a profound impact on her life and was likely to remain with her, fluctuating in intensity, for the remainder of her life.
[22] [2015] VSC 499.
In Hand v Morris & Anor[23] the plaintiff was awarded damages for injury caused by childhood sexual abuse. The plaintiff was aged 51. He was sexually abused by his teacher at nine years of age and suffered psychiatric injury in the form of an anxiety disorder. General damages were assessed at $260,000. The abuse involved his teacher, over the course of a year, in 1974, directing the plaintiff to come to the front of the class and sit next to the teacher behind an open desk. The teacher then unzipped his fly and grabbed the plaintiff's hand, forcing him to hold and masturbate the teacher's penis. This incident happened a couple of times a week over the course of a year. The trial judge found that the abuse had had a lifelong impact on the plaintiff, having a profoundly damaging effect on his self‑esteem, confidence and relationships with others. His work performance and satisfaction were impaired. He suffered a generalised anxiety disorder which was chronic and would endure for the whole of the plaintiff's life.
[23] [2017] VSC 437.
In TB v State of New South Wales; DC v State of New South Wales[24] two sisters aged in their 40s, who were sexually abused by their stepfather and suffered psychiatric illness, did not succeed on liability. Nevertheless, the court went on to assess their general damages respectively at $377,500 and $269,000.
[24] [2015] NSWSC 575.
Each of the plaintiffs had been regularly sexually abused in their school years, 30 years previously. The sexual abuse included the stepfather raping the sisters and also included digital penetration, forced fellatio and inappropriate touching and kissing. The abuse caused serious psychiatric injury to both sisters and spanned over a number of years.[25]
[25] The finding in favour of the State on liability was subsequently overturned on appeal but the appeal court did not disturb either of the assessments for non-economic loss. See DC v State of New South Wales [2016] NSWCA 198.
In Gersbach v Gersbach[26] a 35-year-old plaintiff claimed she was sexually assaulted by her father over a 10 year period from the age of four until the age of 14. As a result, she alleged that she suffered a borderline personality disorder, an eating disorder (bulimia) and that she turned to alcohol and drugs from age 16. Her claim failed on the basis the plaintiff did not discharge her onus of proof that the abuse occurred. However, damages were assessed on a hypothetical basis and general damages were notionally fixed at $300,000.
[26] [2018] NSWSC 1685.
In PCB v Geelong College[27] the plaintiff was sexually abused between the ages of 12-14 by a contractor engaged by the school. The sexual abuse took the form of the defendant masturbating the plaintiff and himself in the plaintiff’s presence on some 50 occasions over the period. As a result, the plaintiff suffered from post traumatic stress disorder and a generalised anxiety disorder. He was awarded $300,000 under this head of damage.
[27] [2021] VSC 633.
In Lawrence v Province Leader of Oceania Province of Congregation of Christian Brothers[28] (between the ages of eight and 16) the plaintiff, whilst residing in an orphanage run by the Christian Brothers, was repeatedly subjected to various forms of sexual abuse, including anal rape by the Brothers and a lay teacher. As a result, he suffered a psychiatric injury which impacted all aspects of his life. Mr Lawrence was awarded $400,000 for pain and suffering and loss of amenities.
[28] [2020] WADC 27.
In ZAB v ZWM[29] the sexual abuse involved the defendant, the plaintiff’s father, touching the plaintiff’s testicles and penis on multiple occasions over the period when the plaintiff was 10-15 years old. As a result, the plaintiff suffered from a complex post traumatic stress disorder and major depression. ZAB was awarded $300,000 for general damages for non-economic loss, which amount included an unspecified component for aggravated damages.
[29] [2021] TASSC 64.
In O’Connor v Comensoli[30] the plaintiff was sexually abused on three occasions by a Catholic priest at a time when he was serving as an altar boy at the local church. The abuse comprised the priest touching the plaintiff’s penis, attempted anal intercourse and kissing. As a result, the plaintiff suffered a complex post traumatic stress disorder, major depressive illness and a lifelong pattern of alcohol abuse. The court found that the assaults reshaped every aspect of his life in a dramatically destructive way and awarded him $525,000 under this head of damage.
[30] [2022] VSC 313.
In Mirosevich v Laughlan[31] the plaintiff was awarded $400,000 for sexual abuse, at the hands of his stepfather, over a six year period when he was aged 12‑17. The abuse, which occurred on a regular basis each week, involved indecent touching and digital rape. As a result, the plaintiff suffered from a complex post traumatic stress disorder, depression and anxiety.
[31] [2022] NSWSC 1103.
In PP v DD (No 2)[32] the plaintiff was subjected to sexual abuse involving the defendant masturbating him and committing fellatio on him. At the time he was aged 16 years. In this case, the court concluded that the assaults did not lead to a psychiatric illness until many years later. The court, however, found that the assaults forced him to live with the guilt and shame of being abused, which in turn had made him feel that he had been a disappointment to his family. He was awarded $200,000 for general damages.
[32] [2021] NSWSC 1312.
Finally, in Footscray Football Club Ltd v Kneale[33] the plaintiff, on appeal, was awarded $850,000 after a reassessment of a jury verdict where he had been awarded over $3 million.
[33] [2024] VSCA 314.
In Kneale the plaintiff was, as a schoolboy over a five year period between 12 and 17, the subject of regular and grave sexual abuse at the hands of a 40 year old paedophile. The abuse consisted of indecent touching, rubbing, masturbation, oral sex and anal rape. As a result, Kneale suffered from a complex post traumatic stress disorder involving flashbacks, nightmares, hypervigilance, anger and insularity, uncontrollable crying and suicidal ideation.
Whilst there have been numerous decisions on this issue interstate, there is, to my knowledge, only one reported case in South Australia.
In S, M v S, RK[34] (a claim brought in the District Court) the plaintiff was sexually abused between the ages of three and 18. She was diagnosed with chronic post traumatic stress disorder and a chronic major depressive disorder which was primarily attributed to the sexual abuse perpetrated upon her by the defendant. I say primarily because she also reported being raped by another person at the age of 16 and being sexually abused by an uncle as a young child.
[34] [2019] SADC 184.
The sexual abuse perpetrated by the defendant involved multiple acts of sexual touching, penile and digital rape and forced fellatio.
She was awarded $100,000 for pain and suffering, apportioned as to $70,000 for the past and $30,000 for the future.
In the context of the other awards to which I have referred, bearing in mind the duration of the abuse and particularly its impacts upon her, at first blush, the amount awarded here seems somewhat of an outlier. It is perhaps explicable, however, by reason of the fact that the court proceeded upon the basis that only 60% of her psychiatric illness was attributable to the defendant’s abuse. Furthermore, it would appear, from the list of authorities cited in the decision, that none of the interstate authorities, to which I have referred, were referred to the court.
For these reasons, unless otherwise constrained, I consider the interstate decisions mentioned above to be a more reliable guide as to what may accord with current ideas of fairness and moderation in relation to awards for this type of abuse. I say “unless otherwise constrained” because of the observations of Blue J in BHP Billiton. In BHP Billiton Blue J referred to an earlier decision of Doyle CJ, in Ewins v BHP Billiton Ltd,[35] where the former Chief Justice was sitting at first instance. In Ewins his Honour was invited to revise the award of damages (for dust diseases claims) upwards from the then prevailing level of awards in South Australia.
[35] (2005) 91 SASR 303.
Doyle CJ declined the invitation and said:
It is the function of the Full Court, and not of a single judge, to decide whether the general level of damages should be increased.
I respectfully agree with and adopt those remarks. If there was a prevailing line of authority, with respect to awards for psychiatric injury caused by abuse of this kind, in this State, I would similarly be constrained to assess damages under this head in accordance with the level of those awards,
However, despite the very thorough researches of counsel and, to a far more limited extent, my own, apart from the one authority to which I have referred, I am not aware of any other authority on this topic in South Australia, let alone a line of authority.
Accordingly, I feel able to approach my assessment of damage, under this head, free from the constraints which burdened the former Chief Justice in Ewins.
A number of things emerge from the analysis of the foregoing decisions in this area.
First, the awards for sexual abuse relate to applicants who in the main were abused as children or for part of the time as children.
Secondly, the abusers were usually persons in positions of authority or quasi‑authority or persons in whom the applicants reposed trust or were entitled to repose trust.
Thirdly, the abuse, although on occasions isolated, generally took place over a significant period of time.
Fourthly, the abuse was often sustained, regular and violent.
Fifthly, while there has been a wide variation in quantum, all have been significant awards usually involving hundreds of thousands of dollars.
Lastly and most importantly, the consequences of this type of abuse for the applicants in most cases, in terms of their psychological health, have been devastating. For many, having been violated in the most base way as vulnerable young people, unsurprisingly their lives have been forever irreparably damaged.
Finally, prior to considering my findings and arriving at my assessment on this issue, I do not overlook the fact that it is the ultimate impact on the applicant of the respondents’ conduct to which I must have regard.
As Cavanagh J said in PP v DD:[36]
… Further, like any assessment of damages consequent on tortious conduct, the amount of the damages is not in some way measured against the gravity, severity or frequency of the assaults. Damages must be assessed having regard to the effect on the plaintiff.
[36] Ibid at [54].
With those features in mind, I will turn now to consider my findings and assessment under this and the other heads of damage.
Findings
In reaching the findings I am about to make, I repeat that I accept the evidence of the applicant. I found her to be an honest and credible historian.
Whilst there were areas where her memory was not as precise as it might otherwise have been, I find this to be explicable in terms of the passage of time that has elapsed since the abuse took place, rather than any conscious exaggeration or fabrication on her part.
I also accept the opinions expressed by Dr Begg. Importantly, the foundation for his opinions was borne out by the evidence given by the applicant.
The sexual abuse suffered by the applicant at the hands of the respondents was sustained, regular and violent.
The abuse commenced when she was 15 years old and continued for a number of years. The abuse, by the first respondent, involved penile and digital rape, rape using objects, kissing and touching.
The abuse, by the second respondent, involved kissing, touching the applicant’s vagina and non-consensual intercourse when the applicant was 19 years old.
As a result of one of his rapes the applicant became pregnant to the first respondent with a daughter to whom she is now sadly estranged.
As a consequence of this abuse the applicant developed a post traumatic stress disorder and a mild depressive illness which still endures some 30 years after the abuse ceased. She experiences nightmares, flashbacks and poor sleep. She is understandably extremely emotional and cries often. Although she is in a supportive marital relationship she experiences difficulty with physical intimacy with her husband.
In general terms, although she can be happy, her life is always lived under the spectre and fear of being hurt by others.
On a more positive note the applicant has made regular and concerted efforts to make a better life for herself and subsequently for her family.
To that end she has made frequent endeavours to obtain employment, be it temporary or permanent. She was able to obtain employment in various guises in nursing homes and care facilities in Tasmania which culminated, on her return to South Australia, in a decision to undertake study and qualify as an Enrolled Nurse in 2016. Since then, she has been working in that capacity at the local hospital.
As I have noted, she enjoys that work and intends to continue doing that work for the foreseeable future. This employment has been a prime factor in her improved psychological outlook since returning to South Australia.
It is reasonable to approach the impacts of the sexual abuse upon her as being more significant in the period leading up to her return to South Australia in or about 2014. Since then, according to her evidence, she has been improved. However, I need to approach her evidence with a measure of caution for the reasons earlier expressed.
She has a stoic personality which leaves her prone to discount the severity of the impacts of the abuse on her life. While she has made much of her life in the face of a devastating period of abuse during her vulnerable years, she is not to be “punished” for so doing.
Although her resilience has permitted her to create a meaningful and productive life in the general community, I do not overlook the fact that this has been achieved despite the impacts of this abuse which challenge her ability to enjoy life every day and throughout each day.
Accordingly, despite the efforts she has made to improve herself, maintain employment and carry on with the day-to-day demands of being a wife, mother and breadwinner, the impacts on her life have been profound and merit an award under this head at the higher end of the scale.
After making an appropriate discount for the stresses associated with her husband’s ex-wife, in my view she is entitled to an award under this head of $400,000 to be apportioned as to:
·$300,000 for past general damages; and as to
·$100,000 for future general damages.
Interest
Section 30C of the Supreme Court Act 1935 provides that the Court can assess pre-trial interest at a rate fixed by the Court or award an amount by way of a lump sum at the Court’s discretion.
In Grincelis v House,[37] the High Court articulated the statutory purpose of an award of interest:[38]
As was noted in Gogic:
“The function of an award of interest is to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period.”
There is no doubt that this is a very important purpose of statutory provisions providing for the award of interest on the amount of a debt or damages in respect of the period between the cause of action accruing (or, in some statutory provisions, the commencement of the proceedings) and the date of judgment. It may be, however, that statutory provisions for interest serve not only that purpose, but also a purpose of encouraging early resolution of litigation. That statutory awards of pre-judgment interest may have such a purpose may be more readily understood in relation to claims for debts or sums certain than in personal injury cases where it will often be in the interests of the plaintiff to wait until injuries have stabilised before bringing the action to trial. For present purposes, however, it is sufficient to have regard to the compensatory purpose of interest.
(footnotes omitted)
[37] (2000) 201 CLR 321.
[38] Ibid at [16].
In this case, the abuse commenced some 37 years ago. The interest rate which should be applied for her non-economic loss is 4%.[39]
[39] See MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 which approved Wheeler v Page (1982) 31 SASR 1 at 6-7.
Although there have been differing views expressed as to the way in which awards under this head should be calculated, in circumstances such as those applying here, namely where there has been a long period between the time when the cause of action arose and judgment, one approach has been to either halve the rate or halve the period to reflect the fact that the actual loss occurred at differing times throughout the whole period.[40] Applying this approach would result in an award under this head of $222,000.
[40] See generally PP v DD (No 2) at [247]-[254].
In my view, to do so in this case would potentially overcompensate the applicant because there has been an inadequately explained delay in instituting these proceedings for which the respondents should not be responsible.
In all the circumstances, I propose to follow the approach adopted by Gray J in Trevorrow v State of South Australia (No 6),[41] namely to exercise the broad discretionary power in s 30C and award a lump sum in lieu of interest.
[41] [2008] SASC 4 at [17].
I allow an amount of $150,000 under this head.
Future treatment
The applicant is likely to need to continue using Lexapro or a suitable equivalent for the rest of her life. The cost of this medication is currently $8.40 per week. Her life expectancy is some 37 years.[42]
[42] See Cumpston Sarjeant Actuarial Guide – 2025.
I accept that in actuarial terms the figure of $1.00 per week for a fixed term of 37 years with a 3% discount rate is 1174 which results in a lifetime cost for her medication of some $9,800.[43]
[43] Cumpston Sarjeant Actuarial Guide – 2025. I have adopted 3% rather than 5% because the prescribed discount rate identified in s 55 of the CLA does not apply for the reasons expressed earlier.
To this figure there should be added a further sum to allow for other medications, and consultations and treatment, at a general practitioner level, for her nightmares and sleep disorder.
She may also choose to undertake some psychological counselling which Dr Begg recommends.
Doing the best I can and adopting a very much broad‑axe approach, and after applying a 15% discount for the normal vicissitudes of life, I allow a total of $15,000 under this head.
Aggravated damages
Aggravated damages are compensatory in nature, being awarded for injury to a plaintiff’s feelings caused by assault, humiliation and the like.
In New South Wales v Riley[44] Hodgson JA considered the High Court’s decision in Lamb v Cotogno[45] on this issue and said:[46]
[44] [2003] NSWCA 208.
[45] (1987) 164 CLR 1.
[46] [2003] NSWCA 208 at [127]-[133].
That immediately raises the question, what is it that distinguishes aggravated damages from ordinary compensatory damages? Ordinary compensatory damages are supposed to be an amount adequate to compensate the plaintiff for all consequences of the defendant’s wrongful conduct that are not too remote; so what room is there for additional damages, which although dependent on some aggravating feature of the defendant’s wrongful conduct, are still supposed to do no more than compensate for consequences of that conduct?
In cases where the wrongful conduct is trespass to land, for which damages for psychological injuries are not generally awarded, one can say that aggravated damages are compensatory damages for injury to the plaintiff’s feelings by the manner of the trespass, which would not otherwise have been awarded.
But aggravated damages are also awarded in cases where ordinary compensatory damages for injury to feelings are generally awarded, such as assault or defamation.
If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages?
In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.
That approach is consistent with what Lord Reid said in Cassell & Co. Ltd. v. Broome [1972] AC 1027 at 1085:
Damages for any tort are or ought to be fixed at a sum which will compensate the plaintiff, so far as money can do it, for all the injury which he has suffered. Where the injury is material and has been ascertained it is generally possible to assess damages with some precision. But that is not so where he has been caused mental distress or when his reputation has been attacked - where, to use the traditional phrase, he has been held up to hatred, ridicule or contempt. Not only is it impossible to ascertain how far other people's minds have been affected, it is almost impossible to equate the damage to a sum of money. Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable - and different people will come to different conclusions. So in the end there will probably be a wide gap between the sum which on an objective view could be regarded as the least and the sum which could be regarded as the most to which the plaintiff is entitled as compensation.
It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.
This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range. The approach also means, I think, that aggravated damages can be a matter of degree: the worse the defendant’s conduct, the further from the centre of the range and towards the upper limit of the range the court may be justified in going. (my emphasis)

Applying the foregoing to the case at bar, I am of the view that the first respondent’s conduct, constituted by the abuse itself, his behaviour towards the applicant thereafter and subsequently during and since his criminal trial, is sufficient to attract an award under this head. In the second respondent’s case, her conduct is still worthy of sanction. Although she did not actively resist the claim, she still remained silent. Importantly, she did not accept that she had engaged in any wrongdoing. In short, she didn’t dispute the claim but, quite pointedly, did not accept it.
I allow the applicant the sum of $40,000.
In summary, I am satisfied that the applicant is entitled to the following awards:
·Non-economic loss:           $400,000
·Interest on past loss:           $150,000
·Future treatment:                $15,000
·Aggravated damages:         $40,000
·Total:  $605,000
She is also entitled to special damages in accordance with the schedule (Exhibit A4) in the sum of $2,197.60.
The only issue which remains is as to whether there should be any apportionment as between the tortfeasors. In my view, the abuse perpetrated by each of the respondents has led to and caused the same psychological illnesses and associated deleterious impacts on the applicant’s life over these last 37 years. In the circumstances there is no warrant to make an apportionment as between the respondents.
I will hear the parties on the question of costs.

[2025] SASC 58

7 May 2025