EF v GH

[2023] NSWDC 538

District Court

New South Wales

Medium Neutral Citation:

EF v GH [2023] NSWDC 538

Hearing dates:

8 November 2023

Date of orders:

30 November 2023

Decision date:

30 November 2023

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

(1) Judgment for the plaintiff against the first defendant in the sum of $645,000.

(2) The first defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

(3) Liberty to the parties to seek a different costs order to that set out in Order 2 above within 14 days.

Catchwords:

TORTS – intentional torts – battery – personal injury – psychiatric injury – historic sexual child abuse – damages sought for battery and psychiatric injury and consequential loss – assessment of damages

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT)

District Court Act 1973 (NSW)

Limitation Act 1985 (ACT)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58

Croucher v Cachia [2016] NSWCA 132; (2016) 95 NSWLR 117

Gersbach v Gersbach [2018] NSWSC 1685

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36

KS v GR [2020] NSWDC 73

Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1

Malec v JC Hutton Pty Ltd (No 2) (1990) 169 CLR 638

MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) CLR 567

MC v Morris [2019] NSWSC 1326

McCabe v Riechelmann [2023] NSWDC 44

ND v AB (No 3) [2022] ACTSC 197

P2 v D2 [2019] NSWDC 84

PP v DD (No 2) [2021] NSWSC 1312

Queensland Bulk Water Supply Authority (t/as Seqwater) v Rodriguez & Sons Pty Ltd [2021] NSWCA 206

State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496

Varmedja v Varmedja [2008] NSWCA 177

White v Johnston [2015] NSWCA 18; (2015) 87 NSWLR 779

Category:

Principal judgment

Parties:

EF (Plaintiff)
GH (Defendant)

Representation:

Counsel:
D W Elliott (Plaintiff)

Solicitors:
Gerard Malouf & Partners (Plaintiff)

File Number(s):

2022/00292258

Publication restriction:

Yes
(1) All information tending to reveal the identity of or otherwise concerning any party or lay witness in the proceedings and any information that comprises evidence in the proceedings is suppressed and may not be published pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”) except for the purposes of the proceedings.
(2) The name of the proceedings in all future listings of the Court is to be henceforth EF v GH.
(3) Order 1 is made on the grounds set out in s 8(1)(a), (c), and (e) of the Act.

JUDGMENT

1. In these proceedings, the plaintiff EF, aged 36 years at the time of the final hearing, seeks damages from the defendant GH for the tort of battery and consequential psychiatric injuries arising from the historic sexual abuse by the defendant of the plaintiff when she was a child aged 12. As will be indicated below, the final hearing involved the assessment of damages only by the Court.

2. At the relevant time, the plaintiff was an elite athlete who trained and performed under the auspices of a Government institution in the Australian Capital Territory (“ACT”). The plaintiff was referred to the defendant for therapeutic massage purposes and the defendant was retained by the plaintiff’s parents to provide such services to her. An unusual feature of the case is that the alleged sexual misconduct by the defendant occurred whilst the plaintiff was receiving therapeutic massage services in the presence of the plaintiff’s mother. There is no suggestion that the plaintiff’s mother was aware of the improper nature of what was occurring to the plaintiff at the relevant time. It appears from all the evidence that what was occurring to the plaintiff happened covertly.

3. A court book was tendered at the final hearing and became Exhibit A. Part of the court book was a detailed expert medical report from a Dr Karen Gaunson, a consultant psychiatrist. This report was prepared following a detailed consultation with the plaintiff by video conference on 18 March 2022. Dr Gaunson is an experienced psychiatrist based in Melbourne.

Procedural background

4. The plaintiff commenced proceedings by filing a Statement of Claim on 30 September 2022 against both the current (first) defendant and the Government institution referred to above as the second defendant. The plaintiff discontinued her claim against the Government institution in May 2023.

5. On 2 June 2023, the remaining (first) defendant filed a Defence, denying that any sexual contact as alleged in the Statement of Claim occurred concerning the plaintiff.

6. The remaining (first) defendant did not appear at a number of procedural directions hearings before the Judicial Registrar of the Court.

7. On 18 July 2023, the Judicial Registrar noted that if there was no appearance by the defendant on 1 August 2023, his Defence filed on 2 June 2023 would be struck out under Part 12.7 of the Uniform Civil Procedure Rules 2005 (NSW).

8. There was no appearance by the defendant on 1 August 2023. The Judicial Registrar ordered that under Part 12.7, the Defence filed on 2 June 2023 was struck out and judgment was entered for the plaintiff against the remaining (first) defendant. Procedural orders were then made for the service of expert evidence.

9. In due course, the assessment hearing against the defendant was listed before the Court on 8 November 2023.

10. On 8 November 2023, there was no appearance by the defendant. Various documents were tendered which became Exhibits B, C and D in the proceedings. Having regard to those documents, I was satisfied that the defendant was fully on notice of the assessment hearing and that it was in the interests of justice to proceed with the assessment hearing despite the defendant’s absence.

The proper law of the tort

11. Counsel for the plaintiff submitted that the proper law to be applied was the law of the ACT as that was where the tort sued upon occurred. In my view, that submission is correct. As the battery alleged occurred in the ACT, the plaintiff’s claim (including any question of limitations) was to be determined by reference to the law of the ACT as the lex loci delicti: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36; Queensland Bulk Water Supply Authority (t/as Seqwater) v Rodriguez & Sons Pty Ltd [2021] NSWCA 206 at [23]; Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58 at [4].

The pleaded case

12. In paragraph 4 of the Statement of Claim, it is pleaded by the plaintiff that, in the course of various massages given in 1999 and 2000, the defendant intentionally sexually assaulted the plaintiff. It is particularised that, in the course of the massages, the defendant asked the plaintiff to remove her clothes so that she was naked for the purposes of massage and then proceeded to sexually touch the plaintiff’s breasts, buttocks, abdomen, vulva, groin, and genitalia and on one occasion inserted his fingers into the plaintiff’s vagina and thereby sexually penetrated her. It is also particularised that the defendant encouraged the plaintiff to lie on the ground whilst naked and exposed himself to her whilst performing massages by wearing baggy shorts without underpants so that she could see his genitalia.

13. In paragraph 5, the plaintiff claims damages in trespass for the sexual assaults. This was clarified in the course of submissions to be a claim for the tort of battery.

14. A claim in negligence was also pleaded against the first defendant but was not apparently pressed in the light of the evidence relating to the sexual assaults.

Limitation issues

15. As ACT law applies to the claim, the relevant legislation applicable is the Civil Law (Wrongs) Act 2002 (ACT). This relates to claims in tort including for non-economic loss. Essentially, the common law applies except that in deciding damages for non-economic loss, a court may refer to earlier decisions of the court or other courts for the purposes of establishing the appropriate award in the proceedings: s 99.

16. It seems that up until the insertion of s 21C in the Limitation Act 1985 (ACT) in 2016, there would have been a limitation bar upon the current proceedings. However, that bar has been removed by that section: see paragraph 76 of ND v AB (No 3) [2022] ACTSC 197. Section 21C in the Limitation Act lifts the limitation bar if the cause of action substantially arises from child abuse to which the person was subjected when the person was a child. The term “child abuse” includes sexual abuse.

17. The tort claimed in the present case and which in my view is applicable is the tort of battery. In Croucher v Cachia [2016] NSWCA 132; (2016) 95 NSWLR 117, Leeming JA (with whom Beazley P and Ward JA agreed) noted at [34] that a cause of action in battery may be established where the defendant’s conduct is either intentional or alternatively merely negligent. Justice Leeming said it was necessary to look at the character of the underlying conduct, following White v Johnston [2015] NSWCA 18; (2015) 87 NSWLR 779 at [132]. Justice Leeming noted that battery is one of three forms of trespass to the person, the others being assault and false imprisonment. His Honour held that a defendant who directly causes physical contact with the plaintiff will commit a battery unless the defendant proves that the defendant was “utterly without fault”: at [21].

18. In considering the approach to this matter in relation to the assessment of damages, I take into account the following authorities:

1. My decision in KS v GR [2020] NSWDC 73;

2. PP v DD (No 2) [2021] NSWSC 1312; and

3. ND v AB (No 3) [2022] ACTSC 197.

19. By having his Defence struck out and judgment entered, the defendant is taken to have admitted the facts pleaded in the Statement of Claim as well as his liability for such damages to be assessed: see the authorities referred to in paragraphs 5-6 of ND v AB (No 3), above.

20. In the present case, in the context of the facts giving rise to the sexual batteries pleaded, the conduct of the defendant in my view was intentional and it clearly could not be stated that the defendant’s conduct was “utterly without his fault” within Justice Leeming’s analysis in Croucher v Cachia, above.

21. Also, in light of the nature of the conduct pleaded and the age of the plaintiff at the relevant time, issues of consent to the battery are irrelevant and do not arise. There is no suggestion that the plaintiff’s mother who was present, purported to consent to any of the conduct pleaded other than therapeutic massage.

22. There was no evidence before the Court to suggest that any of the actions pleaded and particularised in the Statement of Claim of the defendant fell within the concept of the legitimate therapeutic massage of the plaintiff.

Evidence on behalf of the plaintiff

23. The plaintiff gave oral evidence in the proceedings. Having seen the plaintiff give her evidence and having asked her myself a number of questions, I regard the plaintiff as an impressive witness and a witness of truth. She readily made concessions against interest when these were appropriate. The plaintiff’s evidence seemed to be genuine and reliable.

24. The plaintiff gave evidence that she was born in 1987 and in 1999 was aged 11 or 12. Based on her date of birth she was 12 years of age at the relevant time. The plaintiff gave evidence that she was an elite athlete as at 1999 at the Government institution. The plaintiff gave evidence that she suffered an injury in 2000 and retired from the particular sport in 2001.

25. The plaintiff stated that she was referred to the defendant for the purpose of massage therapy. She noted that she had injuries in the course of her training. She said that her parents agreed with the defendant to perform ten occasions of therapeutic massage. It is noted that the occasions in question are particularised in paragraph 3 of the Statement of Claim and occurred in the second half of 1999 and early 2000. The cost of these sessions was paid for by her parents and receipts were provided by the defendant.

26. The plaintiff gave evidence that for the purpose of the therapeutic massages she attended the defendant’s house with her mother in the ACT. As far as the plaintiff could recall, her mother was in the room with her when the massages occurred. The plaintiff said that progressively the defendant asked her to take off all her clothes until she was naked, but she was covered by a towel. The plaintiff said that as far as she could recall, her mother was there most if not all of the time when the defendant asked her to remove her clothing.

27. The plaintiff gave evidence of the following parts of her body which the defendant touched using his hands in the course of the massages whilst she was unclothed:

1. Her breasts including on and around the nipple extending to the outside of the breasts;

2. Her buttocks;

3. Her vulva;

4. The inside of her vagina.

28. The plaintiff stated that the defendant placed his finger inside her vagina on one occasion for a period of time which was really painful to her. She could not recall him moving his finger around whilst it was in her vagina. She said she cried when this occurred but her mother did not hear her.

29. The plaintiff gave evidence that the defendant placed his finger inside her vagina on only one occasion. However, she gave evidence that the defendant placed his hands on her breasts, buttocks and vulva more than once but she could not recall the number of times. I accept and find that the placement of the defendant’s hands on the stipulated parts of the plaintiff’s body, including her nipples, occurred on more than one occasion at least.

30. The plaintiff gave evidence of being naive at the time and involved in her sport at the elite level and believed the therapy was another sacrifice she had to make in furtherance of the sport. At the time, the plaintiff said that she did not associate the defendant’s actions with any misconduct. However, she said she recalled feeling uncomfortable whilst this was occurring and she had never had any similar experience with therapists before, including them touching her breasts.

31. In light of her experience in later life and her adulthood, the plaintiff said she now regarded the manner in which she was touched by the defendant as being “sexual abuse” and “inappropriate” with it potentially occurring under the towel placed on her. The plaintiff said she had a clear memory of the events occurring. She said she clearly regarded the defendant’s touching as being sexual in nature.

32. The plaintiff stated that the first time she interpreted the defendant’s acts as being sexual in nature was following a talk she attended at high school in February 2004 in the course of sex education at the beginning of her Year 11.

33. The plaintiff gave evidence also that the defendant exposed himself to her while she was lying on the floor. She said that he was wearing shorts without underpants and she could see his genitalia in the course of the massage sessions. Having regard to her position on the floor, she was the only person to whom his genitalia was being exposed.

34. The plaintiff gave evidence that at some stage she contacted the police and was interviewed by police. She said she decided not to make a formal statement or to engage as a witness in criminal proceedings because she wanted to forget about it and not become involved and she was receiving psychological help at that time.

35. The plaintiff gave evidence that her school performance in 1999 was good but it deteriorated in 2000 following the events complained of.

36. The plaintiff gave evidence that in 2004 she developed bulimia. She said it “had been developing” over a number of years. She said the bulimia problems commenced soon after seeing the defendant. The plaintiff attributed her decline in school performance to multiple factors, including partially her sexual abuse at the hands of the defendant. She said she knew that something was wrong in the treatment he had given to her. However, she did not think in detail about the matter in 2000.

37. The plaintiff gave evidence of attending university and obtaining a qualification in the health services industry. She stated that she attempted to self-harm at age 20 which she put down to depression. She said the contributing factors were many years of bulimia, low self-esteem and the conduct of the defendant. The plaintiff gave evidence that she was not receiving prescribed medication for mental health issues and the last time she had been prescribed medication for that was at university and more than 10 years ago.

38. The plaintiff gave evidence that she became involved in another sport which she had success with which helped her with the loss of her involvement with the elite sport in her early teenage years.

39. The plaintiff described her mental health as having good periods and not so good periods.

40. The plaintiff gave evidence in relation to aspects of her work history. The plaintiff stated that last year she obtained a permanent part-time job for three days per week. She said she found a fulltime five days per week job as very “overwhelming”. She said she worked more than three days per week occasionally adding a fourth day about once per month. She said she restricted her work hours in order to manage her mental health issues. The report of Dr Gaunson establishes that the plaintiff has had a very mixed working history undertaking various temporary positions in the industry in which she worked. The plaintiff later said in her evidence that she became anxious at work and over checked items. She said she found it hard to tick a box in a form at work without researching the item and that this affected her work capacity and added to her anxiety. She said she found an area of her work more satisfying where she dealt with a person’s needs and wants and their quality of life.

41. The plaintiff was asked various questions about her consultation with Dr Gaunson which gave rise to the opinion dated 31 March 2022. She agreed that she had a long consultation with Dr Gaunson and had reviewed the report and said the facts in it were true and accurate.

42. The plaintiff was asked about consultations with mental health professionals since the report. The plaintiff indicated that she had continued seeing a psychologist, Ms R Ospovat. The plaintiff indicated that she began seeing Ms Ospovat regularly at the end of 2019 or the beginning of 2020. Initially, the plaintiff said that she saw Ms Ospovat fortnightly and then reduced her consultations to monthly consultations some time in 2022. The plaintiff said that she had not seen her psychologist for the last approximately six months as she regarded herself as managing satisfactorily with her mental health issues. She said that this was the longest period she had been able to manage her issues herself. She put the cessation of seeing her psychologist down to her ability to manage and financial issues. When asked whether she would attend the psychologist more if she could afford it, the plaintiff said that at the moment she regarded herself as being in a satisfactory position.

43. The plaintiff was asked whether she thought the need for attending a psychologist had been put behind her and she said that she regarded it as likely that she would need some assistance in the future. The plaintiff said that she had a good relationship with Ms Ospovat.

44. The plaintiff was asked whether she would attend a psychiatrist. She said that she would be open to that in the future if she regarded it as desirable.

45. The plaintiff gave evidence that she had recently discovered that the person who had introduced her family to the defendant had been convicted of child sexual matters. She said this had a real effect on her and made her feel a bit sick and worried her that she may have been trafficked between offenders.

46. The plaintiff was asked about her weight in the light of her bulimia issues and said it was stable. She said that she has never been extremely thin as a result of her condition. She said she had to manage her bulimia symptoms and went on binge eating sessions about monthly.

28. The plaintiff gave evidence that she was in a de facto relationship at present as referred to in Dr Gaunson’s report. She said she had no plans to have children as she did not know whether she was capable of managing children. She said that after the incidents with the defendant, she did not have a happy childhood, although her childhood had been happy up to that point.

29. As indicated, I found the plaintiff to be a straightforward and honest witness. She had difficulties with her recollections on occasions which is understandable having regard to the circumstances and the time which has passed.

30. The absence of a Defence for the defendant, it having been struck out, leaves the Court in a position where judgment has been given for the plaintiff. Having regard to the plaintiff’s evidence, which I accept unreservedly, I find that the massage of the plaintiff’s breasts (including her nipples), buttocks and vulva area was of a sexual nature and was a battery. Clearly the penetration of the plaintiff’s vagina with the defendant’s finger, which I accept occurred, amounts to a sexual battery. In accepting that the conduct was of a sexual nature, I make that finding in the light of and taking into account that serious allegations are made against the defendant by the plaintiff. I take into account the authorities referred to in paragraphs 543-544 and 546-547 referred to by me in McCabe v Riechelmann [2023] NSWDC 44. I am comfortably satisfied that the conduct alleged occurred by the defendant and amounted to a battery.

Report of Dr Gaunson

50. As indicated, the plaintiff tendered a report of Dr Karen Gaunson, psychiatrist, dated 31 March 2022. Dr Gaunson’s report is extremely lengthy and goes through in detail the plaintiff’s background and history. In my view, it is unnecessary for the purposes of these reasons to set out Dr Gaunson’s opinions in detail.

51. On page 18 of her report, Dr Gaunson noted that the plaintiff reported being insecure in her de facto relationship. She also reported a history of dissociative symptoms, disconnection with her feelings/pain, a decline in academic performance from around the age of 13 years due to mental health problems, eating disorder symptoms from the age of 17 years, and one suicide attempt at the age of 20 years. Dr Gaunson indicated that at the time of her assessment, the plaintiff had a range of psychiatric symptoms and difficulties functioning across different areas of her life.

52. Dr Gaunson diagnosed the plaintiff as having the following psychiatric conditions as a result of the abuse at the hands of the defendant and her treatment in the Government institution:

1. Major depressive disorder – recurrent and in partial remission;

2. Bulimia nervosa – mild at the time of assessment;

3. Generalised anxiety disorder with features of traumatisation – including panic attacks, worry and obsessional and prominent disassociation;

4. A differential diagnosis of complex post-traumatic stress disorder. The plaintiff is described as having symptoms with a negative self-concept, difficult interpersonal relationships and emotional dysregulation. Dr Gaunson also describes the plaintiff as having features of avoidance and a sense of threat although it did not meet the criteria for “ex-experiencing”.

53. Dr Gaunson is of the view that the psychiatric symptoms found “altered the plaintiff’s developmental trajectory in adolescence” and caused a range of secondary problems which continue to limit her participation in various aspects of her life including her work.

54. Dr Gaunson referred to the fact that the defendant was in an entrusted, helping role and abused the plaintiff in the presence of her mother. The “boundary violation” involved, appeared to Dr Gaunson to have had profound implications on the plaintiff’s trust and capacity for authentic relationships including personal and work relationships.

55. An issue arose in Dr Gaunson’s report between the attribution of the plaintiff’s psychological problems to her sexual abuse by the defendant and the physical abuse she allegedly received by staff at the Government institution. Dr Gaunson admitted that apportionment was difficult and she noted the breadth of the plaintiff’s allegations about how she was treated at the Government institution. Dr Gaunson expressed the opinion that 50% of the plaintiff’s psychiatric injuries related to her alleged sexual abuse.

56. Having regard to the report of Dr Gaunson and the plaintiff’s oral evidence, that percentage of attribution appears to be reasonable and justified and I accept it, although the evidence before me was limited.

57. Dr Gaunson expresses the opinion that the plaintiff’s psychiatric impairment was likely to be permanent and stable being that it was unlikely to change much in the 12 months after her report. She noted the plaintiff was at increased risk of further episodes of more severe mood symptoms similar to what she had in her twenties and was at increased risk of another suicide attempt. It was noted that the plaintiff had protective factors including her intelligence, “tenacity”, concern for others, and family support.

58. Dr Gaunson gave estimates for the cost for future medical treatment.

Submissions

59. Counsel for the plaintiff provided written submissions and made further oral submissions. He relied heavily on Dr Gaunson’s report. In particular, he submitted that the plaintiff’s psychiatric impairment has prevented her from achieving her occupational potential and has increased the stress of performing her role. As a result, it was submitted, the plaintiff limits her hours of work and her responsibilities. He emphasised the significant nature of the sexual abuse by the defendant. He noted the plaintiff’s continuing bulimia problems which commenced soon after her abuse by the defendant. He said the Court should properly draw a connection between the two.

60. Counsel for the plaintiff sought the following damages for the plaintiff:

Head of Damage	Amount Claimed	Detail
General damages for non-economic loss	$150,000	Half of the amount which should be allowed for the plaintiff’s combined abuse by the defendant and the government institution
Interest on $100,000 at 2%	$48,000	The amount of $100,000 amounts to two-thirds of the amount for non-economic loss for the past and one-third for the future.
Aggravated damages	$50,000	Due to the nature of the conduct and the circumstances in which it was committed
Past out-of-pocket expenses	$2,000
Future out-of-pocket expenses	$50,000	This is for future medical expenses relying on the estimates in Dr Gaunson’s report
Past economic loss	Buffer of $150,000
Future loss of earning capacity	Buffer of $250,000
Amount for superannuation	$50,000
Total	$750,000

61. Counsel indicated that the amount sought was the limit of this Court’s jurisdiction at the time the Statement of Claim was filed: See ss 44 and 4 of the District Court Act 1973 (NSW).

Consideration

62. The task before the Court is to assess the damages which should be awarded to the plaintiff for the batteries found.

63. Apart from the estimates of future costs by Dr Gaunson, I accept the matters stated in her report including her description and diagnosis of the plaintiff’s psychiatric conditions and the future likely problems she will face.

64. As indicated, the plaintiff has had other issues in her life including relating to her treatment at the Government institution. However, I have accepted the causative attribution in Dr Gaunson’s report having regard to the matters mentioned by Dr Gaunson and the plaintiff’s evidence. I find that the various psychiatric conditions of the plaintiff as a matter of common sense were partly caused by the sexual batteries committed on her by the defendant.

65. In KS v GR [2020] NSWDC 73 I stated as follows in paragraph 42:

“42.  It is always difficult to assess damages as compensation to a child victim of persistent sexual assault. On one level no amount of money can compensate for the breach of trust, physical misuse and persistent sexual abuse over a lengthy period of the plaintiff as a child. However, the court has a duty to make an assessment of damages in accordance with legal principle.”

66. That case involved persistent abuse of a female child over about 11 years. The abuse which occurred to the plaintiff in the present case was over several months. However, in my view similar comments can be made in relation to the current plaintiff and the assessment task which the Court faces. The sexual abuse which the plaintiff has suffered has had a profound effect on her. The duty of the Court is to assess the damages to which she is entitled in accordance with appropriate legal principle.

67. I proceed to consider the various heads of damages claimed.

General damages/Non-Economic Loss

68. Under s 99 of the Civil Law (Wrongs) Act 2002 (ACT) non-economic loss is defined as including pain and suffering and loss of amenities of life. There is no loss of expectation of life or disfigurement of the plaintiff arising from the defendant’s acts. Apart from these matters, the damages to be assessed for the plaintiff are substantially in accordance with the common law.

69. I considered the proper approach to be taken to an assessment in paragraphs 44 and following in the KS v GR case, above. In general terms:

1. The sum to be awarded for general damages is a sum “to compensate a plaintiff for all of the physical harm and mental harm suffered by the plaintiff as a result of the conduct of the defendant”: applying Gersbach v Gersbach [2018] NSWSC 1685 at [504];

2. The task of the court is not to isolate out each occasion of sexual assault and make an award of damages separately for each but rather to award general damages for all of the assaults which occurred throughout the plaintiff’s childhood in the light of her current condition and the evidence: see Varmedja v Varmedja [2008] NSWCA 177 at [154]; Gersbach at [504] and MC v Morris [2019] NSWSC 1326 at [12].

70. I have considered the awards of general damages in a number of cases involving child sexual assault. However, I agree with the comments of Judge Russell in P2 v D2 [2019] NSWDC 84 at [36] that “each case has to be decided on its own facts”. The sexual assaults in the present case, although occurring only over several months, have caused profound long term difficulties in the plaintiff.

71. The matters I take into account are as follows:

1. The sexual assaults were committed on the plaintiff over a period of several months when she was 12 years of age;

2. The sexual assaults occurred on (at least) more than one occasion;

3. Although the plaintiff’s mother was likely present when the batteries occurred, the plaintiff, through her naivete, thought it was part of what she had to go through for her sport treatment and advancement;

4. The sexual batteries were serious and occurred more than once. In particular, I accept that there was digital/vaginal penetration on one occasion;

5. The plaintiff has had serious mental health conditions arising in part due to the tortious conduct of the defendant;

6. The conduct has had a significant effect on the plaintiff’s intimate relationships in her adult life, her mental well-being, and her work;

7. The plaintiff suffered bulimia symptoms soon after the events in question and particularly had problems in her early twenties. I find that these problems were causatively connected to the batteries; and

8. The plaintiff has reported an improvement in her mental condition in more recent times leading to the cessation of psychological assistance.

72. The assessment involved is an evaluative one. Taking into account all of the evidence, including the psychiatric evidence and the plaintiff’s oral evidence, I accept the submission on behalf of the plaintiff that $150,000 should be allowed for general damages for non-economic loss. I also accept the submission that $100,000 of this should be treated for past damages and $50,000 for future damages. That is justified having regard to the plaintiff’s improvement and her ability to hold down a responsible job albeit on a part-time basis.

73. In relation to the claim for interest concerning past damages, I agree that the interest should be allowed on the past figure at 2% as the loss should be regarded as having occurred over the period from the date of the conduct until the present: this is consistent with authority: MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) CLR 567; Gersbach at paragraph 511.

74. The plaintiff is now 36.

75. The amount of interest to be awarded is accordingly $48,000 as submitted by the plaintiff ($100,000 x 2% x 24 years).

76. The plaintiff seeks $50,000 in aggravated damages. In Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at [8] the High Court stated as follows:

“Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to plaintiff’s feelings caused by insult, humiliation and the like.”

77. The conduct in question in the present case was brazen and serious and occurred in the presence of the plaintiff’s mother. It was conducted in a covert fashion. The defendant took advantage of the situation presented to him to commit the conduct.

78. The Court of Appeal has emphasised the importance to avoid double counting of damage in the assessment of any aggravated damages: see State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 at [130]. I take that principle into account.

79. The plaintiff seeks $50,000 under this head, as indicated above. In my view, that figure is excessive and taking into account all of the facts I would only allow a figure of $20,000 for aggravated damages. I do this to avoid any double counting but acknowledge the aggravating factors I have referred to.

80. There is no evidence the plaintiff has received any victims’ compensation payments to be taken into account.

Past out-of-pocket expenses

81. There was no evidence before me in relation to past out-of-pocket expenses. Clearly the plaintiff has had numerous psychological sessions in the past. The amount sought is $2,000. That appears to me to be a very reasonable amount and I allow that amount.

Future out-of-pocket expenses

82. The plaintiff seeks a figure of $50,000 based on the opinion of Dr Gaunson. Dr Gaunson recommended:

1. Weekly to fortnightly sessions with the current psychologist for ten years;

2. Additional therapy from the psychologist;

3. Assessment by a psychiatrist with a view to quarterly reviews and advice to the treating general practitioner regarding medication;

4. An assessment by a neuropsychologist.

83. Dr Gaunson also referred to a possible need for psychiatric hospitalisation if the plaintiff’s symptoms worsen and other potential treatment.

84. The assessments by Dr Gaunson as to future costs appear to have been based on the assumption that the plaintiff was taking medication for her mental health issues. The plaintiff said she was not and had not been since her twenties. The opinion was also based on the plaintiff continuing with sessions with Ms Ospovat, the plaintiff’s psychologist. The plaintiff indicated that she had not seen Ms Ospovat for about six months.

85. In my view, the amount sought is excessive. The plaintiff is doing very well managing her mental health issues herself at the moment. However, clearly an amount should be allowed for the real possibility that the plaintiff will need further psychological assistance and possibly psychiatric assistance. Doing the best I can having regard to the recent improvement in the plaintiff’s condition but taking into account her young age and Dr Gaunsons views, I allow $30,000 under this head.

Past economic loss

86. In my view, having regard to the plaintiff’s obvious intelligence and her obtaining tertiary qualifications despite the events which have confronted her, it was always likely that the plaintiff would undertake tertiary studies.

87. The plaintiff has had various jobs in the course of her working life. She has only worked for limited days per week.

88. The plaintiff seeks a buffer in the amount of $150,000. This is based, according to the submissions made, on the plaintiff having lost about $200 per week over a 15 year period.

89. There was no evidence before me as to the plaintiff’s current salary or the salaries of persons working a full five day week in her field of work (including at a higher level).

90. In assessing past economic loss, I take into account the comments of Justice Cavanagh in PP v DD (No 2), above at paragraphs 217-219. I agree with his Honour’s comment that in reality a plaintiff’s claim in an historical sexual assault action for past loss “can only be assessed on the basis that he lost the chance of earning more than he has”. I agree that a Malec v JC Hutton Pty Ltd (No 2) (1990) 169 CLR 638 approach can be taken to this issue.

91. I accept that the plaintiff would have worked five days per week in her job but for the events in question. Some allowance for higher promotion must be considered. Taking into account all the matters I have mentioned, I would allow $130,000 under this head.

Future loss of earning capacity

92. The plaintiff claims an amount of $250,000 as a buffer for loss of future earning capacity. As was indicated by Cavanagh J in PP v DD (No 2) at [230]: “Like past loss, the plaintiff must establish what his earning capacity would have been but for the defendant’s conduct and to what extent that capacity has been diminished as a result of the assaults”.

93. Again, I believe that the plaintiff would have worked on a fulltime basis and probably at a higher level than she currently works. There was no evidence before me of promotion prospects or salaries in the plaintiff’s area or in similar areas. However, the Court must do its best on the evidence in assessing damages.

94. The plaintiff is 36 years old and can expect to work for another likely 31 years. She said she did not want to have children. Clearly an allowance should be made for vicissitudes for the future and the possibility that she may have only worked part-time if the events in question had not occurred.

95. I take into account the causal attribution percentage referred to by Dr Gaunson in her report. Taking all of these matters into account I would allow $230,000 as a buffer under this head. A buffer can be awarded in these circumstances and is appropriate in my view in the present case.

Loss of superannuation past and future

96. The plaintiff claims $50,000 under this head. Having regard to the reduced amounts referred to I would allow a buffer of $35,000 under this head. This also takes into account a discount for vicissitudes in the future and Dr Gaunson’s causal attribution. It also takes into account that the plaintiff may only have worked part-time if the batteries had not occurred.

97. Accordingly, I would allow the following amounts as damages:

Non-economic loss	$150,000
Interest on past non-economic loss	$48,000
Aggravated damages	$20,000
Past out-of-pocket expenses	$2,000
Future out-of-pocket expenses	$30,000
Past economic loss	$130,000
Future loss of earning capacity	$230,000
Superannuation for past and future	$35,000
Total	$645,000

98. The plaintiff has been successful in being awarded substantial damages. In those circumstances, in my view the first defendant should pay the plaintiff’s costs of the proceedings as agreed or assessed. However, either party may apply to the Court for a different costs order.

Determination

99. For the above reasons, I make the following orders:

1. Judgment for the plaintiff against the first defendant in the sum of $645,000.

2. The first defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

3. Liberty to the parties to seek a different costs order to that set out in Order 2 above within 14 days.

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Decision last updated: 04 December 2023