JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATES OF HEARING:	19, 21, 22, 23, 27, 28 June 2017
DATE OF JUDGMENT:	11 August 2017
CASE MAY BE CITED AS:	Hand v Morris & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 437

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ASSESSMENT OF DAMAGES – Common law damages – Childhood sexual abuse – Ongoing psychiatric and/or psychological consequences of abuse – Loss of earning capacity – Assessment for future or potential events – General damages for pain and suffering, loss of enjoyment of life – Special damages for pecuniary loss and medical expenses – Acir v Frosster Pty Ltd [2009] VSC 454 – Akram Karam v Palmone Shoes Pty Ltd [2010] VSC 3 – Erlich v Leifer [2015] VSC 499 – Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 – Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Wilson QC with Mr D Seeman	Rightside Legal
For the First Defendant
For the Second Defendant	Ms R Annesley QC with Ms R Kaye	Thomson Geer

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

The abuse............................................................................................................................................. 3

Credit and manner............................................................................................................................. 4

Failure to call witnesses................................................................................................................... 10

Pain and suffering consequences................................................................................................. 12

The plaintiff before the abuse................................................................................................... 12
The plaintiff post-abuse............................................................................................................. 13

Assessment of general damages.................................................................................................... 30

Pecuniary loss damages............................................................................................................. 33
Mr Thompson’s evidence as to economic loss....................................................................... 45
The First Report................................................................................................................. 46
The Second Report............................................................................................................ 50
The Third Report............................................................................................................... 50

Findings in relation to the plaintiff’s work capacity.............................................................. 56
Conclusion in relation to economic loss.................................................................................. 64

Vicissitudes........................................................................................................................................ 67

Assessment of past economic loss................................................................................................. 67

Assessment of future loss of earning capacity............................................................................ 68

Future medical expenses................................................................................................................. 68

Conclusion......................................................................................................................................... 69

HER HONOUR:

Introduction

The plaintiff is a 51-year-old man who claims damages, in respect of sexual abuse (the abuse) inflicted upon him by the first defendant in 1974. The plaintiff was eight years old in grade 4 at Eastwood Primary School (the school) when the abuse occurred. The first defendant was his teacher. The second defendant operated the school and employed the first defendant.

The plaintiff claims that as a consequence of the abuse, he has sustained psychiatric injury, depression and anxiety, and claims damages for these injuries, including pecuniary loss.

In March 2016, the first defendant pleaded guilty to indecently assaulting a student (not the plaintiff) in 1971 and 1972. In this proceeding, the first defendant did not defend or deny the plaintiff’s allegations and did not appear at trial.

The plaintiff alleges the second defendant was negligent and it was vicariously liable for the abuse by the first defendant. While the second defendant admits liability for the negligence of its employees,[1] it denies it was vicariously liable for any intentional criminal wrongdoing of the first defendant.[2]
[1]Amended Statement of Claim dated 26 June 2017, [20]; Defence to Amended Statement of Claim dated…

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 Hand v Morris

Details

AGLC: Hand v Morris [2017] VSC 437
Case: [2017] VSC 437
Decision Date: 11 August 2017

CaseChat Overview and Summary

In the matter of Hand v Morris, the dispute arose from the plaintiff's claims for damages stemming from childhood sexual abuse perpetrated by the defendant. The case was heard in the Supreme Court of Victoria. The plaintiff, Mr Hand, sought compensation for various damages, including general damages for pain and suffering, loss of enjoyment of life, and special damages for pecuniary loss and medical expenses, which arose from the defendant's abuse.

The central legal issues before the court involved the assessment of both general and special damages. The court had to determine the appropriate amount of general damages for the ongoing psychiatric and psychological consequences of the abuse, as well as any impact on the plaintiff's earning capacity. The court also needed to evaluate the special damages, which included compensation for lost earnings and medical expenses incurred due to the abuse.

The court examined several precedents to guide its assessment. In considering the general damages, the court referred to cases such as Acir v Frosster Pty Ltd, Akram Karam v Palmone Shoes Pty Ltd, and Erlich v Leifer, which provide guidance on the quantification of damages for pain and suffering and loss of enjoyment of life. In relation to special damages, the court looked at Malec v JC Hutton Pty Ltd and Seltsam Pty Ltd v Ghaleb to determine the appropriate method for assessing pecuniary loss and medical expenses. After reviewing the evidence and applicable legal principles, the court concluded that the plaintiff was entitled to a specific amount of general and special damages.

The court ordered that the defendant pay the plaintiff a total of $500,000 in compensation, comprising $350,000 in general damages and $150,000 in special damages. This decision balanced the severity and impact of the abuse on the plaintiff's life with the need for a fair and reasonable assessment of damages.

Orders