B P v K R

Case [2025] SASC 58

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

  1. This is a claim for damages for trespass to the person (battery) and negligence.

  2. 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…

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AGLC
B P v K R [2025] SASC 58
Case
[2025] SASC 58
Decision Date

CaseChat Overview and Summary

The case of B P v K R involves an assessment of damages arising from a claim of sexual abuse by the applicant, B P, against the respondents, K R and another. The abuse, which was admitted by the respondents, began when B P was a child and continued into her young adulthood, resulting in severe psychological injury. The court was tasked with determining the appropriate amount of damages for the injuries sustained by B P due to the prolonged and severe nature of the abuse. The legal issues included the extent of the injuries and the appropriate compensation for the significant impact on B P's life, including her relationships, career, and mental health.

The court considered precedent cases where similar awards of damages were made for sexual abuse cases, noting the importance of awarding fair and reasonable compensation that is proportionate to the claimant's situation. The court referenced cases such as Erlich v Leifer and Hand v Morris, where substantial damages were awarded for childhood and adolescent sexual abuse leading to severe psychiatric injury. In these cases, the courts found that the abuse had a profound and enduring impact on the plaintiffs' lives, justifying significant compensation. The court applied these principles to assess the damages for B P, taking into account the severity and duration of the abuse and its lasting effects on her mental health and daily functioning.

After considering the evidence and precedent, the court determined that the appropriate award of damages should reflect the significant and long-lasting impact of the abuse on B P's life. The court awarded B P substantial general damages to compensate for the injuries received and the disabilities caused by the respondents' actions. The exact amount of the award was left to be determined following the assessment process.

The court's final orders included the entry of judgment in default of filing defences against the respondents, and the proceeding of the case by way of an assessment of damages. The court also noted that the default judgment precluded the respondents from contesting liability, allowing the focus to remain on the issues of causation, remoteness, and the appropriate quantum of damages.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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].

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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].

Ratio Decidendi

Legal Principle Established

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.