Hermione (a pseudonym) v Keegan

[2022] NSWDC 146

District Court

New South Wales

Medium Neutral Citation:

Hermione (a pseudonym) v Keegan [2022] NSWDC 146

Hearing dates:

15 February; 4 & 25 March; 14 April; 6 May 2022

Date of orders:

6 May 2022

Decision date:

06 May 2022

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Proposed settlement not approved;

2. See paragraph [38] for other orders.

Catchwords:

PRACTICE & PROCEDURE – non-approval of proposed infant settlement

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2002 (NSW), s 56

Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7, s 8

Category:

Procedural rulings

Parties:

Hermione, a pseudonym (Plaintiff)
Lawrence Keegan (Defendant)

Representation:

Counsel:
Mr DW Elliott (Plaintiff)
Ms E Elbourne (Defendant)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
The Law Office of Conrad Curry (Defendant)

File Number(s):

2021/183372

Publication restriction:

A non-publication order has been made pursuant to s 7 and s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) imposing restrictions on publication of names and identifying details of the plaintiff and her mother

Judgment

Non-publication order and litigation pseudonyms

1. These reasons concern the consideration and the non-approval of a proposed infant settlement and the procedural history of the matter to this point. In these proceedings, a non-publication order has been made pursuant to s 7 and s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), which has the effect of prohibiting the publication or the disclosure of any information tending to reveal the identity or otherwise concerning the plaintiff and her tutor, until any further order of the Court. The plaintiff is assigned the litigation pseudonym “Hermione” and her tutor is assigned the litigation pseudonym “mother of Hermione”.

Nature of case

2. On 8 and 9 July 2019, when the plaintiff was aged 11 years, she was sexually assaulted by the defendant, Lawrence Keegan, in his home, at a time when her maternal grandfather had temporarily entrusted her into the defendant’s supervisory care as he was a friend of the grandfather. The circumstances and the defendant’s inappropriate conduct and sexual assault upon the plaintiff are not in dispute. The proceedings are for the assessment of the plaintiff’s claims of compensatory, aggravated and exemplary damages for the psychological injuries she incurred as a result of those events. The Civil Liability Act 2002 (NSW) does not apply to these proceedings.

Procedural history

3. The plaintiff’s statement of claim was filed on 25 June 2021. It was served on the defendant, in prison, on 23 August 2021. The defendant is presently serving a prison sentence in respect of the events the subject of these proceedings, and in relation to other events of a similar nature. That sentence is due to expire in May 2027. As no appearance was filed by or on behalf of the defendant, on 9 December 2021, on the plaintiff’s application, default judgment was entered in her favour, and an order was made that the proceedings be listed for hearing on 15 February 2022 for the assessment of damages.

4. At the appointed assessment hearing on 15 February 2022, pursuant to a Power of Attorney executed by the defendant, the defendant’s older sister, Ms Patricia Eveleigh, appeared by means of a telephone connection to seek an adjournment as she was not in a position to meet the plaintiff’s damages case and she was in the process of engaging legal assistance for that purpose.

5. When readiness to proceed was explored at that assessment hearing it became apparent that the plaintiff could not proceed because, due to oversight on the part of her solicitor, none of the damages material in the plaintiff’s tender bundle had been served on the defendant in any form. Absent exceptional circumstances, the plaintiff’s legal representatives were unable to proceed and they were compelled to apply for an adjournment, which was granted. The costs associated with that adjournment should not be visited upon either the plaintiff or the defendant.

6. A term of the adjournment order made on that occasion was that each party bear their own costs of the adjournment, including any wasted costs, with the proviso that the solicitor for the plaintiff bear those costs, without requiring any reimbursement from the plaintiff. A directions hearing was then appointed for 4 March 2022 to ascertain readiness for a resumption of the hearing. Subsequently, on 3 March 2022, the defendant engaged solicitors, and by consent, the proceedings were stood over for directions to 25 March 2022.

7. On 25 March 2022 the parties informed the Court that they had reached a proposed settlement which required the approval of the Court. I was asked to consider and approve the proposed settlement. At that time I expressed disquiet as to the basis and the adequacy of the proposed settlement sum. At the request of the parties the approval hearing was stood over part-heard to 14 April 2022, but was later adjourned to today, 6 May 2022.

8. Today Ms Elbourne appeared for the defendant and relied upon an affidavit dated 6 May 2022 sworn by the defendant’s sister, Ms Patricia Eveleigh, which set out the defendant’s assets position. That affidavit confirmed that the defendant will remain in prison until at least 2027 for the offences that gave rise to these proceedings, as well as other offences against other persons. No further evidence was produced on behalf of the plaintiff in support of the proposed settlement.

Evidence

9. The plaintiff’s tender bundle was marked Exhibit “A”. The material included a Victim Impact Statement from the plaintiff dated 28 April 2021, and a comprehensive psychiatric assessment report from Dr Richa Rastogi dated 8 December 2021. Neither the plaintiff nor her mother attended the approval hearing.

Facts

10. The following factual summary is uncontested.

11. The plaintiff is presently aged 14 years. At age 11 years, she was sexually molested by the defendant on two occasions in circumstances where she had no-one to protect her from the defendant’s predatory behaviour. She felt helpless. Despite subsequent ongoing weekly therapy sessions, she finds it difficult to express herself as to how those events have psychologically affected her.

12. The reported adverse effects of the underlying events on the plaintiff include difficulty sleeping, tearfulness, residual tiredness that affects her daytime activities and tasks, recurrent thoughts of recurrence of the inappropriate touching, a need to take anxiolytic medication, tearfulness, nihilistic thoughts, bodily scarring from recurrent self-harming behaviour, frequently recurring panic attacks resulting in breathing difficulties and difficulty in talking, flashback experiences and feelings of heightened anxiety and terror on occasions when she imagined she had seen the defendant at school or at the shops, and at times she experiences the phenomena of hearing the defendant’s voice. As a result of those combined experiences, the plaintiff often feels reluctant to leave the sanctuary of her home.

13. Those matters have had a severely adverse effect on the plaintiff’s life. She has attempted suicide by means of an overdose of medication. The aftermath of those events was traumatic and terrifying for her.

14. Other adverse effects on the plaintiff have been an inability to experience joy and a constant feeling of ominousness overtaking her thoughts leading to exacerbated panic attacks. These experiences reportedly sap her energy and leave her feeling exhausted at day’s end. She gets distracted from common everyday tasks and at times needs to be reminded to eat and drink. She acknowledged that she had been starving herself. Those circumstances required that she be hospitalised for necessary treatment.

15. The plaintiff worries that these problems will persist as she grows older. With very few exceptions, she remains deeply distrustful of older males, even doctors, counsellors and friends of her parents who she should be able to trust.

16. The plaintiff has lost her previous confidence. She is no longer outgoing. Her schoolwork has suffered, as has her social life. Due to a decline in her grades and absenteeism, and because she falls asleep in class, she has lost her place in classes for gifted pupils. Her ability to remain focussed is impaired. She finds herself feeling overwhelmed.

17. Although the plaintiff has been faultless, she has experienced misplaced feelings of shame over the precipitating events. Regrettably, she has been made to feel shame by some insensitive and ill-informed comments from within her student cohort who suggested she invited the defendant’s untoward behaviour.

18. The plaintiff tries to avoid attracting attention to herself by changing her appearance, including by wearing oversized clothing in an effort to hide her bodily appearance.

19. At the age of only 14 years the thought of her future frightens the plaintiff. Her outlook on life has undergone a pessimistic change and she states that she cannot see a future for herself.

Medical evidence

20. The expert psychiatric opinion of Dr Rachid Rastogi is uncontested. She expressed the opinion that the plaintiff is emotionally scarred, her confidence and self-esteem have plummeted significantly, and she presents with maladaptive behaviour. Her formal DSM V diagnosis is complex PTSD with Major Depressive Disorder.

21. Dr Rastogi considered the plaintiff’s presentation to be consistent with the direct consequences of the sexual abuse complained of and its adverse impact upon her functioning, amplifying the plaintiff’s underlying vulnerabilities so as to cause the described impediments. She considered this would continue to impair and impact on the plaintiff’s academic, social and personal goals and aspirations.

22. Dr Rastogi considered the plaintiff’s inability to maintain the academic standard required to keep her position in an accelerated class is directly due to her mood disorder consequent upon the trauma she has experienced in the episodes of sexual abuse which has based this litigation. Dr Rastogi thought the plaintiff’s concerns over an intended ability to pursue a career as a lawyer has realistically caused vocational disadvantage and disappointment.

23. Dr Rastogi expressed her prognosis for the plaintiff in the following terms:

“12.   Your prognosis for the Plaintiff.

She continues to display ongoing symptoms of depression and experiences active symptoms of post-traumatic stress disorder, impacting her global functioning despite ongoing treatment. This poses a poor prognosis, especially in the context of social and functional impairments with a likelihood of relapse and deterioration. She is very sensitive to stress with risk of catastrophic responses to trivial negative events.”

[Exhibit “A”, p 55]

24. Although the plaintiff had some underlying health issues which suggested a psychological vulnerability, Dr Rastogi considered the abuse to which the plaintiff was subjected has wholly contributed to her current psychological condition and described impairments.

25. Dr Rastogi considered that the plaintiff will have significant future treatment needs. Her opinion in that regard was expressed in the following terms.

“She needs ongoing trauma counselling with EMDR as well as crisis management from time to time. She will need to be on the antidepressants and may need augmentation with a mood stabiliser under the supervision of a treating psychiatrist. She may need inpatient admissions for crisis intervention given that she is vulnerable to impulsive behaviours and ongoing crisis.

…

She will need ongoing treatment for prolonged periods of time. The cost of seeing a psychologist is $200 per session. The cost of seeing a psychiatrist is $400 per session. Her medications would cost $100 per month. The cost of an inpatient admission to a private psychiatric unit would cost approximately $15,000 for a three week admission.”

[Exhibit “A”, p 56]

26. Dr Rastogi’s assessment must guide the assessment of the plaintiff’s entitlement to damages.

Settlement proposals

27. I do not propose to identify the amount of the proposed settlement except for what follows.

28. On 25 March 2022 the proposed settlement figure for an identified amount plus costs agreed at $45,000 caused me disquiet as to its basis and its adequacy. Today, that disquiet was again expressed to the parties. As a result, the parties requested some time for further discussions, following which a revised settlement offer was put forward for approval in a different amount expressed to be inclusive of costs. The amount is noted in the transcript. That sum is also disquieting.

Consideration

29. An offer to settle a claim brought by a minor on terms expressed to be inclusive of costs simply cannot be approved as a matter of principle and I decline to approve a settlement in the amount of the revised offer so stated.

30. That said, even allowing for an adjustment to that offer to reflect previously agreed costs of $45,000, I find I am still left with disquiet over the adequacy of the proposed settlement as I consider the resultant amount to be not in the plaintiff’s best interests.

31. In my view, on viewing the material in the Court file and in the evidence, that material does not seem to reflect the amount of $45,000 being the agreed costs. However, I am not in a position to express a concluded view on that matter.

32. The plaintiff is entitled to an assessment of general compensatory damages for pain, suffering and loss of amenity of life, aggravated damages and arguably, exemplary damages. Based on the opinion of Dr Rastogi, even after allowing for deferral calculations and discounts, the plaintiff is also entitled to a significant allowance for future loss of earning capacity and future treatment expenses, in addition to any provable special damages.

33. In my view, none of the defendant’s offers put forward for approval meet the standard of reasonableness or the best interests of the plaintiff. Those standards are a pre-requisite for a once and for all settlement that needs the Court’s confirmatory sanction.

34. In arriving at that view I have given due recognition to the fact that the assessment of damages in cases such as this, where compensatory, aggravated and exemplary damages are claimed, the assessment is an evaluative, imprecise and impressionistic exercise where, properly, judicial minds may reasonably differ as to what is considered to be fair and reasonable compensation.

35. As the judge considering the approval of the proposed settlement, I must disregard my own assessments and impressions of the evidence in terms of damages and pay due regard to a likely range and possibly a different range that might be arrived at by other judges when assessing this case.

36. In undertaking that exercise, giving due regard to the evidence, especially that of Dr Rastogi, I consider the proposed settlement to be manifestly inadequate and not in the best interests of the plaintiff as it provides insufficient allowance for non-economic and economic compensation for the plaintiff where liability is not disputed. I decline to approve the proposed settlement.

37. I take the opportunity to record my view that it is possible that the present monetary jurisdictional limit of this Court, $750,000, may not be sufficient for this case.

Orders

38. I make the following orders:

1. The proposed settlement is not approved;

2. The draft consent orders comprising the proposed terms of settlement, the confidential advice of Mr Elliott dated 9 April 2022, and the affidavit of Ms Patricia Eveleigh sworn on 6 May 2022 are to be placed in a sealed envelope in the Court file and marked “Not to be opened except by order of a Judge of the Court”;

3. The matter is fixed for an assessment hearing before another Judge of the Court on 29 June 2022 with an estimate of up to 1 day;

4. Pursuant to s 56 of the Civil Procedure Act 2002 (NSW), the Court will proceed to make other facilitative orders;

5. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 06 May 2022