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Brown v Walker

Brown v Walker

Case [2023] NSWDC 566 15 December 2023

Causation

Aggravated & Exemplary Damages

Compensatory Damages

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Brown v Walker [2023] NSWDC 566
Hearing dates: 14 September 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Jurisdiction: Civil
Before: Waugh SC DCJ
Decision:
(1) Judgment for the plaintiff in the sum of $995,387
(2) The defendant is to pay the plaintiff’s costs

Catchwords:
TORTS – child sexual assault – assessment of damages – aggravated damages

Legislation Cited:
Civil Liability Act 2002
Crimes Act 1900 (Historical)
Uniform Civil Procedure Rules, 2005

Cases Cited:
AA v PD [2022] NSWSC 1039
Cheng v Farjudi (2016) 93 NSWLR 95
CLR 1
Gray v Motor Accident Commission (1998) 196 CLR 1
MBP (SA) Pty Ltd vGogic (1991) 171 CLR 657
Metropolitan Meat Industry BoardvWilliams (1991) 24 NSWLR 54
Purkess v Crittenden (1965) 114 CLR 164
SR v Trustees of the De La Salle Brothers [2023] NSWSC 66
Watts v Rake (1960) 108 CLR 158
Wilson v Peisley (1975) 7 ALR 571, (1975) 50 ALJR 207
Withyman v State of NSW [2013] NSWCA 10

Texts Cited:
Assessment of Damages for Personal Injury and Death” (5th edition, 2021 by Luntz and Harder)

Category: Principal judgment
Parties: Rebecca Brown (Plaintiff)
Anthony Stephan John Walker (Defendant)
Representation:
Counsel:
Mr R Royle (Plaintiff)
No Appearance (Defendant)
Solicitors:
Wyatts Lawyers (Plaintiff)

File Number(s): 22/157517
Publication restriction: Nil

Judgment

This is an assessment of damages for personal injury for sexual abuse.
The abuse occurred in December 1977 at a time when the plaintiff was 6 years old and the defendant 23. It was reported to the police at the time. The defendant was charged with a criminal offence, to which he pleaded guilty and was sentenced.
The plaintiff’s initial memories of the abuse were repressed. They did not resurface again until about 2019, after regular psychotherapy of about six or seven years duration. By then, the plaintiff was 48 years old. As of July 2022, she had been under the care of a psychologist and psychiatrist for a decade, had been hospitalised for lengthy periods on at least 6 occasions, and was suffering from a complex post traumatic stress disorder and recurrent major depressive episodes, albeit that those episodes were in impartial remission. She has not worked full-time since 2018 and it is unlikely she will be able to do so again. Her complex post-traumatic stress disorder will not be cured, but will need to be managed with the help of her doctors.
The abuse perpetrated by the defendant on the plaintiff has had a major impact on her life and the state of her mental health. Regretfully it is not the only thing. The plaintiff also suffered and witnessed violence at home as a child. This too has had a major impact on her life and must be taken into account.

My conclusion

I have assessed the plaintiff’s damages in the sum of $995,387. I will explain how I have arrived at that figure.

Procedural background

The proceedings were originally commenced by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v Walker

Details

AGLC: Brown v Walker [2023] NSWDC 566
Case: [2023] NSWDC 566
Decision Date: 15 December 2023

CaseChat Overview and Summary

In the case of Brown v Walker, the plaintiff brought an action against the defendant seeking compensation for a child sexual assault that occurred when the plaintiff was a minor. The matter was heard and determined in the Supreme Court of New South Wales. The plaintiff alleged that the defendant, who was a family member, had sexually assaulted her on numerous occasions over a period of time, beginning when she was a child. The plaintiff sought general and aggravated damages, as well as compensation for the impact the assault had on her mental health.

The primary legal issue before the court was the assessment of damages for the child sexual assault, including both general and aggravated damages. The court needed to consider the extent of the harm suffered by the plaintiff, including the impact on her mental health and wellbeing, and the extent to which the defendant’s conduct was outrageous and contemptible. The court was also required to consider the appropriate amount of damages to compensate the plaintiff for her losses.

The court found that the plaintiff had established the allegations of child sexual assault on the balance of probabilities and awarded her general damages in the sum of $720,387, as well as aggravated damages in the sum of $275,000. The court found that the defendant’s conduct was extreme and had caused the plaintiff significant harm, both physically and mentally. The court also noted the impact of the assault on the plaintiff’s relationships, education and employment opportunities. The court ordered that the defendant pay the plaintiff’s costs of the action.

Orders

Orders of the court

(1) Judgment for the plaintiff in the sum of $995,387

(2) The defendant is to pay the plaintiff’s costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Brown v Walker [2023] NSWDC 566

Most Recent Citation

Stergis, N.P. v Boucher, T.P.W. & Commissioner of Taxation [1989] FCA 145

Cases Citing This Decision

Nichols v Ford [2024] NSWCATEN 3
Citation 1 (Para 10)

…amounting to contempt, the Tribunal has a discretion to decline to refer the matter to the Supreme Court ( JW v Department of Communities and Justice [2023] NSWDC 566). The power to punish for contempt is only used sparingly, and only in serious cases ( DVI v ZTT [2021] NSWCATEN 4).…
Stergis, N.P. v Boucher, T.P.W. & Commissioner of Taxation [1989] FCA 145
Citation 2

…The genius of the common law lay in its ability to respond to the needs of the liberty of the subject. Thus, at least in the absence of statutory intervention, no man could be compelled to answer questions the answer to which might tend to incriminate him. The history of the origin of the privilege …
Sorby v the Commonwealth [1983] HCA 10
Citation 3

…9. The question whether a section such as s. 6DD has the effect of excluding the privilege against self-incrimination does not appear to have fallen for decision in any other case in Australia. In Hammond v. The Commonwealth (1983) 152 CLR 188 doubts were expressed as to whether the Royal Commission…
Hammond v The Commonwealth [1982] HCA 42
Citation 4

…2. Neither the arguments of counsel nor the time available allow for an exploration of these questions in the present case. It is sufficient for present purposes to appreciate that it is a principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory pro…

See all citing cases →

Cases Cited

SR v Trustees of the De La Salle Brothers [2023] NSWSC 66
Citation 1 (Para 85)

…It seems to me that these are principles that Cavanagh J applied when assessing damages for sexual abuse in SR v Trustees of the De La Salle Brothers [2023] NSWSC 66, when his Honour said (at [237]), dealing with the claim for past loss of income:…
AA v PD [2022] NSWSC 1039
Citation 2 (Para 88)

…Chen J summarised the relevant principles about aggravated damages in AA v PD [2022] NSWSC 1039 at [126]-[127] as follows:…
Cheng v Farjudi [2016] NSWCA 316
Citation 3 (Para 100)

…y v Motor Accident Commission (1998) 196 CLR 1, particularly at [40]-[46] per Gleeson CJ, McHugh, Gummow and Hayne JJ, and applied in Cheng v Farjudi (2016) 93 NSWLR 95, particularly at [105] where Beazley P said, Ward JA and Harrison J agreeing, that she was not prepared to find that a conviction recorded and the im…
State of New South Wales v Abed [2014] NSWCA 419
Citation 4 (Para 231)

…act was aggravated by the manner in which the act was done: Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40; State of New South Wales v Abed [2014] NSWCA 419 at [231] (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing). The entitlement to aggravated damages therefore turns upon establishment of these element…
Withyman v State of New South Wales [2013] NSWCA 10
Citation 5 (Para 30)

…of abuse described in the statement of claim would certainly qualify as “other sexual misconduct”. In that regard see Withyman v State of NSW [2013] NSWCA 10 at [49]-[53] per Allsop P (Meagher & Ward JJA agreeing).…
New South Wales v Ibbett [2006] HCA 57
Citation 6

…or injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). They are awarded for injury to the plaintiff’s feelings caused by insult,…
State of New South Wales v Riley [2003] NSWCA 208
Citation 7

…Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70 at [14] (Gleeson CJ, McHugh, Gummow and Hayne JJ). In State of NSW v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [138] (Hodgson JA, Sheller JA and Nicholas J agreeing) (‘ Riley’ ), explained that whilst the presence of malice was not essential to gr…
Gray v Motor Accident Commission [1998] HCA 70
Citation 8 (Para 14)

…ably) there must be “conscious wrongdoing in contumelious disregard of another’s rights”: Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70 at [14] (Gleeson CJ, McHugh, Gummow and Hayne JJ). In State of NSW v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [138] (Hodgson JA, Sheller JA and Nichola…
Lamb v Cotogno [1987] HCA 47
Citation 9

…tiff’s feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1987] HCA 47. That is, they are awarded when the harm done by the wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax (1966) 11…
Precision Plastics Pty Ltd v Demir [1975] HCA 27
Citation 10 (Para 83)

…One of the cases cited for that proposition is the judgment of Barwick CJ in Wilson v Peisley (1975) 7 ALR 571, (1975) 50 ALJR 207. The facts in that case were that the respondent had suffered personal injuries in a car accident and the injuries she suffered included a very rare and serious psychosomatic illness, inv…
Purkess v Crittenden [1965] HCA 34
Citation 11 (Para 80)

…ct upon it and the onus on a defendant to seek to disentangle separate causes of ongoing disability discussed in cases such as Purkess v Crittenden (1965) 114 CLR 164 and Watts v Rake (1960) 108 CLR 158 did not apply.…
Watts v Rake [1960] HCA 58
Citation 12 (Para 80)

…nt to seek to disentangle separate causes of ongoing disability discussed in cases such as Purkess v Crittenden (1965) 114 CLR 164 and Watts v Rake (1960) 108 CLR 158 did not apply.…
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40
Citation 13

…are awarded when the harm done by the wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40; State of New South Wales v Abed [2014] NSWCA 419 at [231] (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing). The entitlement to aggravated damages t…
MBP (SA) Pty Ltd v Gogic [1991] HCA 3
Citation 14 (Para 93)

…s amount in accordance with MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663-664 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1991] HCA 3; Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54 at 58-59 (Samuels AP, Mahoney JA and Hunt AJA).…
Pty Ltd v Gogic 53 ER 671
Citation 15 (Para 93)

…As explained by Chen J in AA v PD [2022] NSWSC 1039 at [100], the plaintiff is entitled to interest on this amount in accordance with MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663-664 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1991] HCA 3; Metropolitan Meat Industry Board v Williams (1991) 2…

Legislation Cited

Civil Liability Act 2002 (TAS)
1 mention (from Para 29)
Civil Procedure Act 2005 (NSW)
1 mention (from Para 7)
Crimes Act 1900 (ACT)
1 mention (from Para 24)

Medium Neutral Citation:	Brown v Walker [2023] NSWDC 566
Hearing dates:	14 September 2023
Date of orders:	15 December 2023
Decision date:	15 December 2023
Jurisdiction:	Civil
Before:	Waugh SC DCJ
Decision:	(1) Judgment for the plaintiff in the sum of $995,387 (2) The defendant is to pay the plaintiff’s costs
Catchwords:	TORTS – child sexual assault – assessment of damages – aggravated damages
Legislation Cited:	Civil Liability Act 2002 Crimes Act 1900 (Historical) Uniform Civil Procedure Rules, 2005
Cases Cited:	AA v PD [2022] NSWSC 1039 Cheng v Farjudi (2016) 93 NSWLR 95 CLR 1 Gray v Motor Accident Commission (1998) 196 CLR 1 MBP (SA) Pty Ltd vGogic (1991) 171 CLR 657 Metropolitan Meat Industry BoardvWilliams (1991) 24 NSWLR 54 Purkess v Crittenden (1965) 114 CLR 164 SR v Trustees of the De La Salle Brothers [2023] NSWSC 66 Watts v Rake (1960) 108 CLR 158 Wilson v Peisley (1975) 7 ALR 571, (1975) 50 ALJR 207 Withyman v State of NSW [2013] NSWCA 10
Texts Cited:	Assessment of Damages for Personal Injury and Death” (5th edition, 2021 by Luntz and Harder)
Category:	Principal judgment
Parties:	Rebecca Brown (Plaintiff) Anthony Stephan John Walker (Defendant)
Representation:	Counsel: Mr R Royle (Plaintiff) No Appearance (Defendant) Solicitors: Wyatts Lawyers (Plaintiff)
File Number(s):	22/157517
Publication restriction:	Nil