Kyriacou v Power No. Scgrg-99-985
[2000] SASC 138
•2 June 2000
KYRIACOU v POWER
[2000] SASC 138
Magistrates Appeal - Civil
DEBELLE J. This is an appeal against an award of damages made by a magistrate for a sexual assault. The appellant complained that the award is manifestly excessive. The appellant was the defendant in the proceedings. I will refer to the parties as “the plaintiff” and “the defendant”.
The plaintiff was sexually or indecently assaulted by the defendant on 27 February 1997. Briefly stated, the circumstances of the assault were that the defendant had twice placed his hand on the plaintiff’s genitals while both were in the changing rooms of the Henley and Grange Swimming Centre. A short time later, when the plaintiff tried to leave the changing rooms, the defendant was standing in the doorway and, as the plaintiff walked past, the defendant pushed his penis against the plaintiff’s leg. During the course of this assault, the defendant was speaking to the plaintiff in a sexually suggestive manner. The plaintiff is heterosexual. He was distressed by the assault and has suffered lasting psychological damage.
Criminal proceedings were instituted against the defendant and he was found guilty. The plaintiff made a successful claim for compensation under the Criminal Injuries Compensation Act 1978. He was awarded $7,000 compensation. The plaintiff subsequently instituted an action in the Magistrates Court seeking damages for the mental suffering caused by the assault. On 30 July 1999 the magistrate gave judgment for the plaintiff. Taking into account the compensation already received under the Criminal Injuries Compensation Act, he awarded the plaintiff an additional $13,000 damages for past and future non-economic loss. There was no claim for any other loss. The defendant now appeals against that judgment.
Although the notice of appeal raised a number of grounds, at the hearing of the appeal only three grounds were pressed. The first was that the damages were excessive in that the plaintiff had failed to mitigate his loss. The second ground was that by reason of the plaintiff’s conduct the award was manifestly excessive. The third ground of appeal was that the action for damages was an abuse of process.
Mitigation of Loss
The principle that a plaintiff has a duty to mitigate his loss is so well established that it requires no citation of authority. The plaintiff’s duty is to take all reasonable steps to mitigate his loss. Thus, the plaintiff cannot recover damages for any loss which he could have avoided or has failed, through unreasonable action or inaction, to avoid.
This assault had caused the plaintiff to suffer psychologically and he ultimately received treatment. Evidence on these issues was given by the plaintiff and Professor Wood, a psychologist. The magistrate accepted their evidence. The assault occurred in February 1997. The plaintiff was then working with computers and undertaking a computing course. In the first week or so after the assault, the plaintiff experienced considerable distress. He slept poorly and was very nervous. He could not stand the physical proximity of others. For a while he drank to excess and even took marijuana in order to try to improve his sleeping pattern. He still does not like being touched by others, especially when any physical intimacy such as hugging or touching is unsolicited by him. Since the assault, he has experienced difficulty with sexual relationships with women. Before the assault he had had a good sexual relationship for about 18 months. It terminated after the assault. The plaintiff described the change in his life as remarkable. He now has difficulty entering public buildings such as hotels, clubs and theatres because he is afraid to use the public lavatories there. He has lost a lot of his confidence and has become a recluse.
The plaintiff consulted Professor Wood in November 1997. Professor Wood reported that the plaintiff was undoubtedly traumatised by the assault. He was experiencing very high levels of stress, anxiety and depression. Professor Wood advised that he should undergo treatment by a psychiatrist or psychologist. He suggested that the treatment may take up to six months and would cost in the order of $3,500 to $4,000.
The plaintiff did not seek treatment at that time. He said that he could not afford the fees. He was also cynical about the benefit that any treatment might be to him. He saw Professor Wood again in late October 1998. Professor Wood then reported that the plaintiff still suffered post-traumatic stress disorder and dealt with it by trying to put it to one side and avoid it. However, the plaintiff was unable to avoid thinking about the assault. He had become more socially isolated. Professor Wood again recommended treatment.
By March 1999 the plaintiff had completed his studies. He then moved to Melbourne to work as a computer programmer. In Melbourne he consulted a clinical psychologist on a weekly basis. Professor Wood saw the plaintiff again in May 1999 and reported that the plaintiff had benefited from the therapy. The plaintiff had experienced stress as a result of appearing in court when the defendant was convicted and received a suspended sentence. Professor Wood reported that the plaintiff’s psychological condition had considerably improved since November 1998, although he still became anxious when reminded of the assault. He is still anxious about discussing the assault. Professor Wood expected that the plaintiff would continue to make a good recovery. He was by then able to go to a public lavatory. He thought that, taking an optimistic view, the therapy should continue for a further six months. He said that the plaintiff would have benefited if he had started the therapy some time in 1997. He found it difficult to estimate precisely when the plaintiff should have started the treatment.
Mr Agresta, who appeared for the defendant, contended that the plaintiff had not mitigated his loss in that he did not with reasonable promptness commence therapy, medication or counselling. The submission was grounded on Professor Wood’s evidence that the plaintiff’s psychological condition had considerably improved and that he would have benefited if he had started treatment earlier in 1997. It was contended that, had the plaintiff started the treatment sooner, he would have recovered sooner and so suffered these symptoms for a shorter period.
Mr Agresta submitted that the reasonableness of the plaintiff’s conduct was to be viewed objectively. In the particular circumstances of this case that is to over simplify the test. In circumstances such as these, the objective test is to be applied to the subjective position of the plaintiff. In other words, regard must be had to the plaintiff with all his abilities and disabilities when determining whether his conduct was reasonable. The appropriate test is whether a reasonable person in the circumstances as they existed for the plaintiff and subject to the various factors such as the plaintiff’s medical history, his psychological condition, his cynicism and his lack of money, would have begun treatment earlier: Glavonjic v Foster [1979] VR 536 at 540 and Karabotsos v Plastex Industries Pty Ltd [1981] VR 675.
The magistrate expressly dealt with the question whether the plaintiff had mitigated his loss. The relevant parts of his reasons are in these terms:
“It is clear to my mind that the plaintiff did not embark upon relevant counselling or therapy sooner than he actually did for perfectly proper reason. He found even attending upon Professor Wood for assessment for medicolegal purposes to be ‘stressful’ or ‘awful’. He found that it was very uncomfortable. A year later, when he went for further evaluation by Professor Wood, he felt much the same.
Moreover, at the time when one may have expected him to embark upon counselling or therapy, the plaintiff was an impecunious student who could not afford to pay the relevant medical, psychiatric or psychological expert or experts for the purposes of alleviating the symptoms of the post traumatic stress disorder ...
Coupled with these factors was the person and idiosyncratic nature of the plaintiff’s thinking on the matter of counselling or therapy. He felt cynical about it. His cynicism was not assisted by his father who obviously enjoys a robust and less sensitive attitude toward the problems experienced by the plaintiff – it would seem that his father was simply intolerant of professionals and would have none of the talk that his son may have generated regarding the prospects of rehabilitation through professional intermediaries ...
Professor Wood also made it clear (impliedly if not expressly) that he would have expected, in an ideal world, for the plaintiff to have gone some way towards full recovery by the end of 1998 if he had pursued intervention and medication strategies sooner rather than later. But the Professor made it clear that this was simply difficult to know and he could only express that ideal outcome as a hope and not as any prognostic expectation. Putting the matter another way, Professor Wood was making it clear that we were here dealing with virtual imponderables and it is nigh impossible to say, I believe, that sooner intervention by a clinical psychologist or psychiatrist would have accelerated the benefits to the plaintiff. Indeed the Professor made it clear that sometimes, depending on both the experience of the traumatised person and the personality of that person, early intervention is or can be detrimental rather than helpful.
Besides which, Professor Wood was aware – to repeat what I said earlier – that the plaintiff was suffering considerable financial constraints.
The defendant has argued that the plaintiff has failed to mitigate his damages. I disagree. In my view the defendant takes the victim as the defendant finds him. The delays in intervention – whether as a result of financial or idiosyncratic traits like cynicism – matters not in my view when it comes to assessing the plaintiff’s damage. In my view the plaintiff has not failed to mitigate his damages. His explanation, I find, for any delays for relevant professional intervention were at all times reasonable explanations.”
A fair reading of the last paragraph of those reasons shows that the magistrate was endeavouring to express the principle that an assessment of the plaintiff’s conduct had to have regard to his disabilities as well as his abilities. That is apparent from the magistrate’s reference to “physical and idiosyncratic traits”.
Mr Agresta submitted that the magistrate had erred in reaching that conclusion. In support of that submission, he referred to Professor Wood’s evidence that it would have been beneficial for the plaintiff to have started treatment earlier, to the fact that friends of the plaintiff had suggested that he receive treatment earlier, and to the plaintiff’s submission that, with the benefit of hindsight, he should have sought treatment earlier and that he was silly not to do so. But all of those factors are satisfactorily answered in the magistrate’s findings. Furthermore, the magistrate could have also referred to the evidence that the plaintiff was for a long time not receptive to treatment. He was trying to forget the incident and put it behind him. He was also cynical about the benefits of treatment. He had suffered an extremely stressful experience. In his own words, he was a psychological mess when he saw Professor Wood and found the consultation a very uncomfortable experience. All of these factors would have caused the plaintiff to think less than rationally about undertaking treatment. Furthermore, the treatment was expensive. He was a student and he did not have a lot of money. Understandably, he did not wish to borrow money to pay for the treatment. These are all reasons which satisfactorily explain why the plaintiff did not seek early treatment. Had the plaintiff refused to receive treatment, the position might have been different. He has ultimately decided to do so when he became more settled psychologically. Given his psychological condition, one cannot be too critical of his delay. The plaintiff’s conduct ought not to be weighed in nice scales at the instance of the defendant: Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452 at 506; Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 at 355. Although both these decisions deal with contractual disputes, the principle is also applicable to claims for damages for personal injury. In my view, the magistrate was correct in finding that the plaintiff had not failed to mitigate his loss.
Mr Agresta submitted that, if he failed in his argument that the plaintiff had not mitigated his loss, the conduct of the plaintiff in not seeking treatment and mediation earlier was nevertheless a factor which demonstrated that the award of damages was manifestly excessive. This is the argument that the plaintiff failed to mitigate his loss in another guise and I reject it.
For these reasons, I am not satisfied there is any ground for interfering with the award of damages.
An Abuse of Process?
Mr Agresta’s final submission was that the prosecution of this action for damages was an abuse of process. The submission was grounded on certain answers given by the plaintiff in cross-examination in which he had expressed frustration and disappointment that the defendant was not sentenced to serve a term of imprisonment. Later, in the cross-examination, the plaintiff was asked whether he was aware that he might recover less than $7,000 damages. I set out his answer and the following questions and answers:
“A.... So be it. This is not entirely about the money, okay. The money is not going to buy back the 18 months – two and a half years of unhappiness that your client imposed on me without my permission. I didn’t ask to be in that situation. What can I say. Yes, I would like the full wheel of justice to turn to this guy.
Q.Do you expect him to have to pay you money for a punishment, in this case.
A...... Punishment, compensation for that. I don’t want him to forget it, to avoid it. I want him to know. I want this to make a significant impact on his life like it made a significant impact on my life. Why should I let it go.
Q.You haven’t let it go, have you.
A...... No, I haven’t.
Q.What is it that you say you’ve done to not let it go.
A...... To not let the – sorry, could you rephrase that.
Q.Using your words you don’t want him to avoid it.
A...... No, I guess I want to keep – would like to keep pressure applied to him. I want him to know that this isn’t just a passing thing. That this incident is over. He can go back to doing what he normally did going and touching people in change rooms. I’m not the first person he’s done this to.
Q.So you don’t want him to forget it. Is that why your continuing with that action.
A...... I don’t want him to repeat his actions.
Q.Although it’s not for you to do anything in that respect.
A...... Well, I mean – I guess in a position – well it was suggested to me by Mark to pursue this. I mean if it’s – I wouldn’t say it’s wholly and solely a matter of revenge.
Q.There’s an element of that.
A...... No, I think – I think that it’s more a matter of this not happening to anybody else.”
The plaintiff’s answers show a degree of frustration and disappointment. It might even be possible to identify a degree of vengefulness in the fact that he brought this action. The defendant had submitted that the action was an abuse of process. The magistrate rejected that submission. For the reasons which follow, he was correct in doing so.
It is well settled that it is an abuse of process to use the machinery of the court and the remedies of law to obtain a result for which they are not intended or some collateral advantage beyond what the law normally offers: Varawa v Howard Smith Co Ltd (1911) 13 CLR 35; In re Majory [1955] Ch 600; Williams v Spautz (1992) 174 CLR 509 at 522 – 523. As Isaacs J observed in Varawa v Howard Smith Co Ltd at 91, an abuse of process denotes that the process is employed for some purpose other than the attainment of the claim in the action. The court has an inherent jurisdiction to stay proceedings which are an abuse of process: Williams v Spautz at 578. A common example of abuse of process is where legal proceedings are used to coerce the defendant in a manner unconnected to the claim. Thus, in Williams v Spautz, the plaintiff, in a wrongful dismissal case, instituted criminal proceedings against his former employers to put pressure on them either to re-hire him or to agree to a more favourable settlement. The purpose of the criminal proceedings was collateral to the normal object of such proceedings. They were, therefore, an abuse of process. The plaintiff in this action was entitled to bring this common law action for trespass in addition to making his claim under the Criminal Law Injuries Compensation Act. He acted on advice in bringing the action. The prosecution of the action could achieve no other purpose than an order that the defendant pay damages to the plaintiff. The plaintiff may have felt a degree of vengeance but he could not obtain anything other than an award of damages. In other words, if he had a purpose, it was exactly that which the law allows. The plaintiff’s motive is irrelevant. Indeed, it might be added that there would be a good number of litigants who feel a degree of vengeance towards defendants when bringing a claim for damages. Those feelings or those motives do not render the proceedings an abuse of process. If a litigant with a genuine cause of action, which he wishes to pursue in any event, can be shown to have an ulterior purpose as a desired by-product of the litigation, he will not as a general rule be barred from proceeding with it: Goldsmith v Sperrings Ltd (1977) 1 WLR 478 per Bridge LJ at 503; Williams v Spautz at 522. The plaintiff had a genuine cause of action and wished to prove it. His feelings towards the defendant do not cause the action to be an abuse of process. The magistrate correctly determined that this action was not an abuse of process.
For all of these reasons, I would dismiss the appeal.
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