KS v GR

[2020] NSWDC 73

District Court

New South Wales

Medium Neutral Citation:	KS v GR [2020] NSWDC 73
Hearing dates:	17 March 2020
Date of orders:	26 March 2020
Decision date:	26 March 2020
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff against the defendant in the sum of $622,182. (2) The 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 in (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
Legislation Cited:	Civil Liability Act 2002 (NSW) District Court Act 1973 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Croucher v Cacchia [2016] NSWCA 132 Gersbach v Gersbach [2018] NSWSC 1685 MC v Morris [2019] NSWSC 1326 Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 567 P2 v D2 [2019] NSWDC 84 Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 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:	KS (Plaintiff) GR (Defendant)
Representation:	Counsel: S Doupe (Plaintiff) No appearance (Defendant)   Solicitors: Shine Lawyers (Plaintiff) In Person (Defendant)
File Number(s):	2019/00332286
Publication restriction:	All information tending to reveal the identity of the plaintiff and the defendant in the proceedings not be published pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW).

Judgment

1. In these proceedings, the plaintiff, aged 66 years at the time of the final hearing, seeks damages from the defendant for the tort of battery and consequential psychiatric injuries arising from historic sexual abuse by the defendant of the plaintiff as a child between the ages of two-three years and about 14 years. The final hearing involved the assessment of damages only.

2. The evidence relating to the criminal charges which were ultimately brought against the defendant in about 1995 was very limited. It appears that he was charged with three counts of indecent assault and one of attempted sexual assault. Transcript from 9 December 1997 establishes that the defendant was found guilty by a jury of the four counts involving sexual assault over an extended period of time against the plaintiff. Judge Gibson entered a conviction of the defendant on 9 December 1997 (Exhibit B). It appears from the evidence that the defendant spent a period in custody of one year.

Procedural background

3. The plaintiff filed a Statement of Claim seeking damages against the defendant on 23 October 2019. Paragraph 3 of the Statement of Claim provides as follows:

“Between approximately the years 1955 to 1967, when the Plaintiff was aged between 2 and 14 years of age, the Defendant committed acts of indecency, sexual assault, sexual abuse and/or battery against the Plaintiff.”

4. The plaintiff’s statement to the New South Wales Police dated 31 July 1995 which is referred to in the particulars to paragraph 3 of the Statement of Claim became Exhibit C in the proceedings and provides details of extensive sexual assaults committed by the defendant on the plaintiff from the ages of about two/three until about 13/14 years of age. The statement provides that the plaintiff in due course made a complaint to the police in 1995 which led to the criminal trial of the defendant and his conviction and sentence.

5. No Defence was filed by the defendant in the proceedings. There is correspondence on the court file indicating that the defendant continued to protest his innocence and says that he was unable to participate in the proceedings due to age, frailty and lack of financial resources. Default judgment was entered against the defendant on 24 February 2020 with damages to be assessed.

6. The defendant did not appear personally or by way of a legal representative at the assessment hearing. I was satisfied from the material on the file, including a notice from the Court Registry to the defendant and email correspondence from his son on his behalf, that the defendant was aware of the proceedings and aware of the assessment hearing on 17 March 2020. I accordingly assess damages on the evidence before me.

7. As sexual assaults were committed by the defendant against the plaintiff, the Civil Liability Act 2002 (NSW) does not apply and to a major extent the common law applies: see s 3B(1)(a) of the Civil Liability Act 2002; Gersbach v Gersbach [2018] NSWSC 1685 at [480]; MC v Morris [2019] NSWSC 1326 at [1].

8. The tort which is applicable in the present case is the tort of battery. In Croucher v Cacchia [2016] NSWCA 132 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. His Honour said it was necessary to look at the character of the underlying conduct, following the analysis in White v Johnston [2015] NSWCA 18; (2015) 87 NSWLR 779 at [132].

9. At paragraphs 20-25 of Croucher v Cachia, Leeming JA stated as follows:

“20.  Battery is one of three forms of trespass to the person, the others being assault and false imprisonment. While it is conveniently and conventionally labelled as an “intentional tort”, in contrast with negligence, such labels can obscure the necessary analysis of (a) the elements of the tort and (b) how the tort is affected by statute. As it is put in Clerk & Lindsell on Torts (20th ed, 2010, Sweet & Maxwell) at 986, “in this context ‘intention’ has a very particular meaning”.

21.  A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was “utterly without fault”. The requisite direct contact will be present if the defendant uses an instrument (such as gardening shears): Darby v Director of Public Prosecutions [2004] NSWCA 431; 61 NSWLR 558 at [73].

22.  Although battery is an intentional tort, a battery may occur when the defendant is merely negligent. It was in those circumstances that a unanimous High Court said in Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465 at 474 that “[i]t happens in this case that the actual facts will or may fulfil the requirements of each cause of action” (ie battery and negligence).

23. Within the allegations concerning battery, Mr Cachia’s pleading alleged that “[t]he attack was intentional and designed to inflict serious injury” (para 7). That allegation was, strictly speaking, unnecessary in order to establish liability (although, arguably, the allegation was intended to engage s 3B(1)(a) of the Civil Liability Act thereby permitting the award of damages at common law including exemplary damages – see below). It is clear law in this country that trespass to the person caused by a blow does not require the plaintiff to prove anything about intention. I cannot put the point more clearly than did Jacobs JA, with Manning and Moffitt JJA agreeing, in Timmins v Oliver (unreported, New South Wales Court of Appeal, 12 October 1972). Jacobs JA was writing three months after the commencement of the Supreme Court Act 1970 (NSW) which would bring to an end common law issue pleading refined by Baron Parke which had been said by Cotton LJ, shortly after it had been abolished a century earlier in England, in Spedding v Fitzpatrick (1888) 38 Ch D 410 at 414, to “conceal as much as possible what was going to be proved at the trial”. Jacobs JA rejected a demurrer to two bare declarations alleging that the plaintiff had sustained injuries from the defendants driving a motor boat against him, saying:

“Nothing more has ever been required in an action based on trespass than an allegation of the battery and it is too late in the day to change this now. ... Can we as the curtain falls for the last time on declarations in trespass which have held the stage for centuries say that the play has all this time been played wrongly and according to a bad script? I think not.”

24.  The fact that the onus lay on the defendant, and the nature of what was required to be proven, was explained by Windeyer J in McHale v Watson [1964] HCA 64; (1964) 111 CLR 384 and by Street CJ (with whom Ferguson and James JJ agreed) in Blacker v Waters [1928] NSWStRp 46; (1928) 28 SR (NSW) 406 at 410, in both cases tracing the matter back to Weaver v Ward (1616) Hob 134; 80 ER 284. There it was said that no man may be excused of a trespass “except it may be judged utterly without his fault”. The position in this respect is essentially unchanged four centuries later.

25.  As Gummow J said in Stingel v Clark [2006] HCA 37; 226 CLR 442 at [47]:

“[I]n McHale v Watson, Windeyer J demonstrated that, contrary to the view taken by Diplock J in Fowler v Lanning, in an action for trespass to the person by a blow or missile it was for the defendant to aver and prove the absence of intent and negligence on the defendant’s part, rather than for the plaintiff to aver and prove that the defendant acted either intentionally or negligently.”

Gummow J dissented in the result, but the statement of principle reproduced above is uncontroversial. Further, “negligence” means, in this somewhat unfamiliar context, an absence of fault on the part of the defendant (this is another way in which “negligent” bears a variety of meanings, depending upon the context: see Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167at [39]- [41]).”

10. In the present case, in the context of the sexual assaults pleaded, the conduct of the defendant was intentional and it clearly could not be stated that the defendant’s conduct was “utterly without his fault” within Justice Leeming’s analysis.

11. Having regard to the nature of the conduct and the age of the plaintiff, issues of consent to the battery are irrelevant and do not arise.

Evidence on behalf of the plaintiff

The plaintiff’s police statement dated 31 July 1995

12. Exhibit C was the plaintiff’s police statement dated 31 July 1995 which was 14 pages in length and gave considerable detail in relation to the sexual assaults committed on the plaintiff from the ages of two-three to 13-14 years. The statement provides that the sexual assaults complained of took place on a very regular occurrence during this period when the plaintiff was a vulnerable child and the defendant was her step-father. The statement suggests a very unhappy childhood of the plaintiff including alleged knowledge by her mother of at least one of the assaults. It appears that the assaults on the plaintiff by the defendant ceased when the plaintiff was about 13-14 years. The plaintiff believes this was because she felt the defendant was frightened that she might tell her mother the full details.

13. In my view, it is unnecessary to set out in further detail the nature of the sexual assaults in question. The plaintiff adopted as correct the police statement in Exhibit C in her oral evidence. I formed a positive view in relation to the plaintiff from her oral evidence and I accept her evidence. In arriving at that conclusion, I take into account the serious nature of the allegations against the defendant, his failure to file a Defence and the need for the court to reach a state of reasonable satisfaction having regard to the facts alleged as mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 per Dixon J. See also s140 of the Evidence Act 1995 (NSW) and paragraphs 4-8 of the judgment of Garling J in Gersbach, above.

14. The conduct of the defendant established by the police statement and the plaintiff’s oral evidence was over an extensive period of time, was persistent, was a gross abuse of trust in relation to his position with the plaintiff and involved a continuous appalling misuse of position, authority and power. It appears from the court transcript which is part of Exhibit B that only four charges were brought against the defendant relating to the conduct and his period of imprisonment was fairly modest having regard to that matter.

15. The police statement provides further pieces of information in relation to the plaintiff after she left home at aged 16-17. She states that the main reason why she did not come to police earlier was “the shame of it” and the belief that she did not think that anyone would believe her. She also stated that she did not wish to hurt her mother or her family. Both in the statement and in her oral evidence the plaintiff confirmed that the defendant said to her on a number of occasions not to tell anyone in relation to the conduct as otherwise she would be placed in a home and the plaintiff’s family would be “split up”: paragraph 56 of the statement. I accept that evidence.

Medical evidence

16. Tendered as Exhibit A was a bundle of documents. This bundle included two medical reports. Other material included in the bundle suggests that the plaintiff hurt her back when she was employed as a nurse’s assistant in her early twenties and also hurt her shoulder in more recent times.

17. Part of the bundle was a report of Mr Peter Briggs, psychologist, dated 25 May 1998. Mr Briggs interviewed the plaintiff in his rooms on 19 May 1998. After setting out the history of the plaintiff’s sexual assaults by the defendant, Mr Briggs noted that the plaintiff had major problems trusting males, felt very insecure, had regular flashbacks especially during sexual intercourse, avoided thinking about the offences for many years and had feelings of guilt. In addition, the plaintiff said that there had been a major impact on her family relationships including with her mother and some of her siblings. The plaintiff said she felt she had to leave her country town because of the conduct. The plaintiff said that it inhibited intimacy in adult relationships and restricted her social functioning.

18. Mr Briggs found that the plaintiff was suffering from post-traumatic stress disorder. Mr Briggs emphasised the fact that childhood was a very important time in personality development and in affecting a person’s emotional attachment. He noted that the effect of the offences was compounded by the fact that the plaintiff was too fearful to advise anyone of the offences. He was of the view that the post-traumatic stress disorder was of longstanding duration with post-traumatic reactions throughout the plaintiff’s childhood, then settling for some time and then escalating before and during the legal proceedings relating to her step-father in the mid and late 1990s. Mr Briggs expressed the opinion that the plaintiff had both symptoms and disability including fear, distrust, insecurity, flashbacks, avoidance, guilt, distress, sexual problems, anger and anxiety and disabilities in intimate and family relationships. He expressed the opinion that the plaintiff’s emotional problems were towards the “serious end of the sexual assault spectrum”. The prognosis was that the plaintiff would continue to have ongoing problems and a lifelong sense of rejection from her family of origin. He recommended ongoing treatment with at least a mental health counsellor.

19. Also before the court was a report of Dr Stephen Allnutt, psychiatrist, dated 3 July 2019.

20. After setting out the pre-abuse and abuse period history, Dr Allnutt summarised the plaintiff’s work and relationship history after she left home at 16/17. The plaintiff had a number of adult relationships, all of which ceased due to infidelity by her male partner.

21. Dr Allnutt expressed the opinion that the plaintiff manifested a constellation of depressive symptoms as well as symptoms of a trauma and stressor-related disorder. In his view, Dr Allnutt was of the opinion that the plaintiff would meet the criteria for either a chronic major depressive episode or persistent depressive disorder. He also noted the plaintiff’s experience of symptoms of nightmares, feelings of worthlessness, lack of confidence and depression and self-consciousness and inhibition in adult relationships including with sexual intimacy.

22. On examination, Dr Allnutt expressed the view that the plaintiff had a depressed mood and described flashbacks when exposed to certain cues that reminded her of the sexual assaults. He noted that she continued to have a generally negative perception of herself. He noted the symptoms were found with people with a chronic post-traumatic stress disorder. Dr Allnutt expressed the view that it was likely that at times her chronic post-traumatic stress disorder had fluctuated, sometimes becoming sub-clinical. At those times, a proper diagnosis would be an adjustment-like disorder with prolonged duration.

23. Dr Allnutt noted that the plaintiff had used cannabis on occasions and also diagnosed a substance use disorder.

24. While noting that the plaintiff also witnessed domestic violence and was a victim of physical and emotional abuse at the hands of her mother, Dr Allnutt was of the view that the recurrent and regular sexual abuse by the defendant had the effect of triggering the onset of a constellation of post-traumatic stress and depressive symptoms. In the end, Dr Allnutt expressed the view that the sexual assaults “made a substantial contribution to [the plaintiff’s] current mental state”. His prognosis of the plaintiff was poor given the chronic nature of her conditions.

25. Dr Allnutt recommended for the plaintiff consultation with a psychologist and a psychiatrist and ongoing antidepressant medication: Exhibit A page 11.

Victims’ Compensation

26. In Exhibit A was evidence that the plaintiff had been awarded $40,000 in victims’ compensation by the Victims Compensation Tribunal under the Victims Compensation Act 1996 (NSW). This occurred on 10 March 2010. Evidence showed that the defendant had contributed the sum of $9,650 towards restitution in part of this sum: Exhibit A page 23. This was accepted by the relevant authorities as full payment of the defendant’s statutory obligations.

The plaintiff’s oral evidence

27. The plaintiff gave oral evidence by audio visual link. As stated above, in her evidence she confirmed the accuracy of her police statement dated 31 July 1995 which is Exhibit C.

28. The plaintiff gave extensive evidence in relation to her employment following leaving school from a country high school after completing Year 10. She said she had a lack of self-confidence which she put down to her home environment where she was sexually, mentally and physically abused. The plaintiff gave evidence that she had no real problems at school and was able to form friendships with other children at school. The plaintiff gave evidence of a fairly continuous work history with an eventual cessation of clerical duties caused by a bad back. The plaintiff said that in the course of her working life she was not often without work. In due course, the plaintiff spent a number of years in the entertainment industry. She stated that she stopped work in 2006 and has been, since that time, on a disability pension, with periods prior to that time on a disability pension due to her back injury and arthritis pain.

29. The plaintiff then gave a history of her various adult relationships which ceased mainly due to infidelity by her spouses.

30. The plaintiff said that she felt embarrassed in adult relationships and felt very self-conscious during intimacy which she put down to the sexual assaults committed on her by the defendant which she said were very “humiliating”. She said that she had no trust in her partners which she put down to her lack of trust during her childhood in her step-father who committed the sexual assaults in what she described as a “very sly” fashion. The plaintiff said she was very fearful at night and often kept a sharp weapon nearby to protect herself. The plaintiff said that frequently during intimacy she had flashbacks of her childhood assaults which inhibited the ability to have a normal intimate relationship with her partners.

27. The plaintiff said that she had flashbacks every day and frequently saw items which she associated with sexual assaults in her childhood. She said these thoughts and flashbacks made her very sad and very angry. She said she always wanted a father figure in her life and there was never anyone there for her. She stated that she smoked cannabis from the age of 21 to assist her in forgetting the abuse. She confirmed that she had horrible dreams and nightmares in relation to her abuse.

28. The plaintiff stated that the sexual abuse by her step-father had “absolutely demolished my family relationships”. She said the abuse still affected her family relationships to the day she gave evidence and she only had contact with her niece from her family.

29. The plaintiff confirmed that her symptoms were the same when she gave evidence as she had expressed to Dr Allnutt in June 2019. She said she was perhaps a little more anxious now. She said she regarded the assaults committed on her as “disgusting”, said they were not a one off but were done very often and she was appalled that the defendant did not state any remorse, did not “own” the acts and only spent a short period in gaol.

30. The plaintiff confirmed that if she was awarded damages for future psychological and psychiatric care, she would take the opportunity to pursue this treatment.

Submissions

35. Counsel for the plaintiff made detailed oral and written submissions. He set out the background to the sexual abuse inflicted on the plaintiff by her step-father and noted that the abuse was committed by a member of her family and in a position of trust. Reliance was placed on the medical reports of Dr Allnutt and Mr Briggs which were reviewed in some detail. Counsel for the plaintiff sought the following damages to be awarded to the plaintiff:

Head of Damage	Amount Claimed	Explanation
General Damages – Non-economic loss Interest on past loss	$400,000 - $9,650 = $390,350 75% was sought as past loss and 25% for future loss	Deduction of $9,650 representing contribution of the defendant for victim’s compensation
Past economic loss	No longer pressed
Past out of pocket expenses	No longer pressed
Future out of pocket expenses	$56,160	For psychologist consultations, psychiatrist consultations, medication, general practitioner appointments and a buffer
Aggravated damages	$50,000

36. Counsel for the plaintiff accepted that the court only had jurisdiction to award $750,000 although interest on that sum could be awarded: see ss 44(1)(a), 44(2), 4 (the definition of jurisdictional limit) of the District Court Act 1973 (NSW).

Consideration

37. As stated, default judgment was entered against the defendant on 24 February 2020. Accordingly, the task of the court is to assess damages.

38. I find that the plaintiff’s oral evidence and her police statement dated 31 July 1995 which is Exhibit C which she adopted in her oral evidence establish to the required standard the sexual assaults complained of which constitute the torts of battery. I accept the plaintiff’s evidence as to this. She appeared to be a frank and believable witness who answered the questions directly and made concessions where appropriate.

39. I also accept the evidence of Dr Allnutt and Mr Briggs. I accept that the plaintiff was suffering from post-traumatic stress disorder when she saw Mr Briggs in May 1998. I also accept the opinions of Dr Allnutt that the plaintiff has a constellation of depressive symptoms including symptoms of a trauma and stressor related disorder and that she meets the criteria for major depression or persistent depressive disorder. I also accept Dr Allnutt’s opinion that having regard to the plaintiff’s symptoms she has had chronic post-traumatic stress disorder in the past, sometimes becoming sub clinical, and when she does not have post-traumatic stress disorder she has an adjustment-like disorder.

40. Although the plaintiff has had other stressors in her life including in relation to her relationship with her mother, deaths in the family and infidelity in adult relationships, I find based on Dr Allnutt’s evidence that the clear likely major factor causing the plaintiff’s various conditions in the light of the evidence is the sexual assaults committed on her by the defendant as a child. I find that these various psychiatric conditions as a matter of common sense were caused by the sexual assaults committed on her by the defendant.

41. I now turn to the assessment of damages for the injuries found.

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.

General damages

43. As stated above, the damages to be assessed are substantially in accordance with the common law. There is no claim in the present case for gratuitous domestic services which would make relevant provisions of the Civil Liability Act 2002 (NSW): see Gersbach, above, at paragraphs 481-483.

44. 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”: Gersbach, above, at paragraph 504.

45. I also accept the analysis set out in a number of cases that 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 paragraph 504 and MC v Morris, above, at paragraph 132.

46. The plaintiff also 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”.

47. I have considered the awards of general damages in a number of cases involving child sexual assault. In the end, 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”. See also Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 at 125.

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

1. The sexual assaults were committed on the plaintiff over an extensive period of time from two-three years to 13-14 years of age;

2. The sexual assaults occurred on many occasions, although it appears the defendant was only convicted of four charges during his criminal trial;

3. Throughout the assaults the plaintiff was a defenceless child;

4. While the sexual assaults were very serious, brazen and very frequent, they did not involve penile/vaginal or penile/anal or digital penetration and intercourse;

5. The loss and effect on the life of the plaintiff as a result of the torts has been very considerable;

6. The effect on the plaintiff has continued into her intimate relationships in her adult life and on her mental well-being;

7. The plaintiff has very serious mental health and psychiatric conditions as a result of the tortious conduct of the defendant.

49. While I am also satisfied that the plaintiff has suffered significant injury to feelings and humiliation as a result of the sexual abuse by the defendant and his refusal to admit his conduct or show any remorse, it is important 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].

50. Taking into account all the evidence, including the psychiatric evidence, the plaintiff’s oral evidence and her police statement, I assess the plaintiff’s general damages at $300,000 comprising $225,000 for past damages and $75,000 for future damages.

51. In relation to the assessment of $225,000 concerning past damages, it is appropriate to calculate interest on the amount minus the victim’s compensation amount paid, at 4%: see MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 567 and Gersbach at paragraph 511.

52. Counsel for the plaintiff sought the interest from when the plaintiff was two-three years of age. However, taking into account the approach of Justice Garling in Gersbach at paragraph 511, I propose to adopt the period from when the plaintiff turned 10 which was a time when many of the assaults had occurred. I also propose to assess the component at 2% over the entire period as the non-economic loss for which the plaintiff’s award is made has been progressively suffered over the whole of the period to date: see MC v Morris, at paragraph 34 and Gersbach at paragraph 511.

53. The plaintiff is now 66. The victims’ compensation amount must be taken into account and deducted. The amount of interest to be awarded is accordingly $241,192 ($225,000 - $9,650 = $215,350 x 2% x 56 years).

Past economic loss

54. In final submissions this was no longer pressed.

Past out of pocket expenses

55. In final submissions this was no longer pressed.

Future out of pocket expenses

56. The plaintiff sought $56,160 for future out of pocket expenses relying upon the report of Dr Allnutt.

57. The way I read Dr Allnutt’s report, he would allow for treatment by a psychologist with fortnightly consultations for 12 months at $300 per consultation. I allow $7,800.

58. In relation to psychiatrist consultations, I allow monthly consultations for 12 months at $300 per consultation equalling $3,600. Because of uncertainty as to whether the plaintiff’s conditions will respond in that period, I agree with counsel for the plaintiff that a buffer should be allowed for future psychological and/or psychiatric consultations in the amount of $10,000. The plaintiff’s conditions appear chronic and serious.

59. An amount of $60 per month is sought for medication for a period of 22 years being the plaintiff’s life expectancy. This is an amount of $13.85 per week. In my view, an amount of $13.85 per week should be allowed for 10 years. This amounts to $5,719 (multiplier 412.9 x 13.85 on a 5% table). Further medication may be needed after that time. Taking into account the principles in Avopiling Pty Ltd v Bosevski [2018] NSWCA 146, I allow an additional buffer of $2,000.

60. Counsel for the plaintiff sought an amount of $21,120 for general practitioner appointments at $80 per month over the plaintiff’s life expectancy of 22 years. In my view this is excessive. The plaintiff would need referrals to a psychologist and a psychiatrist every six months and a general review of her conditions. The plaintiff also has other health conditions. I would allow $80 every six months for 10 years ($3.08 weekly x multiplier 412.9) equalling $1,271. I would allow a $500 buffer after this time.

61. The total allowed for future out of pocket expenses is accordingly $30,890.

Aggravated damages

62. I have referred above to the consideration of aggravated damages in Lamb v Cotogno by the High Court.

63. In New South Wales v Riley, above, Hodgson JA stated as follows at paragraphs 130-131:

“130  If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages?

131  In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.”

64. In my view, the serious conduct of the defendant involved an insult to the plaintiff and a humiliation of her as a child particularly by the brazen nature of the conduct and his position in authority as the plaintiff’s step-father. The abuse of the plaintiff was degrading and frequent. Taking into account the need to avoid double counting, I would allow the amount of $50,000 as sought by the plaintiff for aggravated damages.

65. The amount to be awarded may be reflected in the following table:

Head of Damage

Amount Awarded

General damages

$300,000

Of which Past damages

$225,000

Future damages

$75,000

Interest on past general damages

$225,000 - $9,650 for the contribution of

the defendant to the victim’s

compensation = 2% x $215,350 x 56

years = $241,292

Future out of pocket expenses

$30,890

Aggravated damages

$50,000

Total

$622,182

66. My calculation of damages should be checked by the parties.

67. As the plaintiff has been successful in being awarded substantial damages, in my view the defendant should pay her costs of the proceedings as agreed or assessed. However, either party may apply for a different costs order.

Determination

68. For the above reasons I make the following orders:

1. Judgment for the plaintiff against the defendant in the sum of $622,182.

2. The 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 in (2) above within 14 days.

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Decision last updated: 01 April 2020