Michael Dryden v David John Jones

[2018] NSWDC 223

District Court

New South Wales

Medium Neutral Citation:	Michael Dryden v David John Jones [2018] NSWDC 223
Hearing dates:	8 August 2018
Date of orders:	17 August 2018
Decision date:	17 August 2018
Jurisdiction:	Civil
Before:	Haesler SC DCJ
Decision:	Damages assessed
Catchwords:	ASSESSMENT – damages for sexual assaults – aggravated damages.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Civil Liability Act 2002 Crimes Act 1900 Victims Rights and Support Act 2013
Cases Cited:	Gray v The Motor Accident Commission (1998-1999) 196 CLR 1 M v Nesbitt [2010] NSWDC 152 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 Shalhoub v State of New South Wales [2017] NSWDC 363 XY v Featherstone [2010] NSWSC 1366
Category:	Principal judgment
Parties:	Michael Dryden (Plaintiff) David John Jones (Defendant)
Representation:	Counsel: Mr R O’Keefe (for the Plaintiff)   Solicitors: Ms K Young (for the Plaintiff) David John Jones (Unrepresented Defendant)
File Number(s):	2018/00064600

Judgment

1. The plaintiff, after receiving the advice of counsel, consented to publication of his name: s15B & 15D Children (Criminal Proceedings) Act 1987.

Introduction/Background

2. In May 2013 the defendant, David John Jones, was charged with 9 counts of homosexual intercourse with a child: s 78K Crimes Act 1900, as it then was. The complainant in the criminal proceedings was Michael Dryden. He was born on 16 August 1976. The criminal charges related to events between 1989 and 1991 when the plaintiff was about 13 or 14 years old. At the relevant time David John Jones was an adult and a close friend of the plaintiff's step-father. In 2014 David John Jones came before the District Court in its criminal jurisdiction. He accepted his guilt to, and was convicted of, the nine counts. He served terms of imprisonment.

3. On 4 June 2018, at the District Court Wollongong, default judgment was entered in favour of the plaintiff against David John Jones, the defendant. The claim related to compensation for damages for injury and other loss arising from intentional torts, being the various sexual assaults committed by the defendant upon the plaintiff between 1989 and 1991. Aggravated damages are also sought.

4. It is recognised, particularly in matters such as this, that an award of damages could never restore the plaintiff to his position he was pre-injury. Money of itself cannot compensate for the pain and suffering resulting from sexual assaults committed by an adult on a child. The amount awarded is intended to be fair to both parties but fairness to the defendant does not mean that the award should be less than full or adequate.

The proceedings

5. The plaintiff was represented by Mr O'Keefe of counsel. The defendant appeared for himself.

6. The plaintiff's comprehensive affidavit was exhibit 1. The plaintiff also gave oral evidence and was cross-examined. Given the defendant was not represented I asked perhaps more questions of the plaintiff than would otherwise be the case. I also reformulated into question form what would otherwise be regarded propositions. The plaintiff's wife, Cindy Dryden, gave evidence. She was not cross-examined. Various reports, records and other documents were tendered without objection.

7. The defendant tendered a letter to the Court setting out his position and attitude both to the original criminal acts and charges and his present predicament. He is a man of modest means and assets. He will suffer considerable hardship if his home, currently the subject of a freezing order, must be sold to meet his obligations to the plaintiff. Two other references were tendered.

8. The defendant was not required for cross-examination. Most of the material tendered for the defendant was not relevant to the issues for consideration in this hearing. To the extent that his letter went behind matters raised as "agreed facts" in the criminal proceedings it was accepted I could have little, if any, regard to those assertions.

9. The defendant was required to, and did make, an offender restitution payment of $8,000 to the Victim's Support Fund: Victims Rights and Support Act 2013. Damages in the civil proceedings must be assessed without regard to that order: s 55(2) Victims Rights and Support Act 2013.

10. A sum of 10,000 was awarded to the plaintiff from that fund. The defendant complains that had that money been used for treatment, damages could have been mitigated. There is no legal requirement that any person who receives a compensation award utilise it in any particular way. Here the amount awarded was a made in recognition of the trauma suffered by a victim of an act of violence. It was not awarded for any other purpose: Exhibit M; ss 34 & 35 Victims Rights and Support Act 2013. The assertions made by the defendant could not establish on balance that the plaintiff failed to mitigate loss. The plaintiff sought to get on with his life and given his continuing symptoms of depression his attitude to past treatment options has not been unreasonable.

The events

11. The plaintiff claimed that from the age of 10 or 11 years old he was subject to sexual abuse by the defendant on a number of occasions. Details of these acts are set out in his affidavit: exhibit A. The abuse involved acts of oral intercourse and attempts at anal intercourse. Nine of the incidents were the subject of criminal charges.

12. Although in his affidavit the plaintiff said the incidents commenced when he was 10 or 11 only incidents from 1989 to 1991, when the plaintiff was 13 and 14, were relied on in the statement of claim as particularised. The criminal charges only related to the period when the plaintiff was 13 or 14. It is for those acts, and their consequences, that damages are sought.

13. The sexual acts were often accompanied by the defendant telling plaintiff that he would not be believed and may end up in a home if he told anyone about what was occurring. As the plaintiff had previously spent some time in foster homes these implied threats would have had significant impact on him. The plaintiff was vulnerable because of age and his strained relationship with his mother and step-father. The defendant, by his own admission, criminally exploited the plaintiff's youth and immaturity. There was no cause or excuse for his actions. The risk of harm to the plaintiff was real and, then and now, notorious.

Evidence of damage

14. The evidence from the plaintiff, the history given to Dr Smith: Exhibit B, and as otherwise set out in the other evidence tendered, reveals he suffered and still suffers considerable psychological damage and impairment as a result if the defendant's actions. His psychological reaction to the impairments has impacted negatively on most aspects of his life. The harm is continuing.

15. In brief summary; as a teenager his home and school life were disrupted. His relationships with his family and women were disrupted. That disruption continues despite the continuing support of his wife. He took up the use and abuse of alcohol from the age of 13. He is still an alcoholic although that condition is in remission. He has twice been admitted to rehabilitation centres. He has had trouble with the law. His relationships have suffered. He has had mental health breakdowns. Two suicide attempts are documented. He says he always feels "down and dumb" He lacks interest and suffers low self-esteem, guilt and shame. He finds it difficult to trust and share his feelings with others.

16. In Dr Smith's opinion, "…the interactions with David Jones that Mr Dryden experienced satisfy the severe stressor A criteria required for the diagnosis of post-traumatic stress disorder." Dr Smith reports that the plaintiff has developed negative beliefs and expectations about himself. He has developed impairments in his ability to trust others. He also experienced marked guilt and shame over what occurred. He has felt detached and estranged from others. He has been troubled by irritability and angry outbursts. He has remained hypervigilant. To cope with his symptomology and to numb his emotional responses he resorted to increasing consumption of alcohol.

17. Dr Smith diagnosed the plaintiff with the following psychiatric disorders:

• Major depressive disorder, chronic in duration.

• Post-traumatic stress disorder, chronic in duration.

• Generalised anxiety disorder, chronic in duration

• Alcohol abuse disorder, currently in remission,

• Polysubstance utilisation, in remission.

18. Dr Smith concluded that "Mr Dryden's psychiatric disorders have significantly intruded into his interpersonal social and occupational functioning … they dated from when he suffered abuse at the hands of the defendant." In Dr Smith's opinion the plaintiff is, in all probability, unlikely to significantly overcome these psychiatric symptomologies. His condition is chronic. He runs the risk of relapse with deterioration in his mood state as well is heightened levels of anxiety. Dr Smith further opined that the plaintiff's history of abuse, "…did materially contribute to his periods of absenteeism from work:" Dr Smith, Exhibit B.

Assessment of non-economic loss

19. The Civil Liability Act 2002 does not apply to intentional acts of sexual assault of other sexual misconduct: s 3B(1). The plaintiff's non-economic loss must be assessed according to common law principles. Such damages are at large. Aggravated damages were sought. No claim for exemplary damages was made given that the defendant had served a term of imprisonment: Gray v The Motor Accident Commission (1998-1999) 196 CLR 1.

20. I was referred to a number of decisions in which damages for sexual assault had been assessed, including M v Nesbitt [2010] NSWDC 152, Murrell SC DCJ, as she then was, and XY v Featherstone [2010] NSWSC 1366, McCallum J. Care must be taken. Exact comparisons cannot be made. Each assessment involved a number of different and individual considerations. My focus must be on the harm occasioned to the plaintiff in 1990 and 1991, his subsequent psychological reaction to it and consequent and continuing impairments. These impairments have impacted negatively on most aspects of the plaintiff's life over three decades. They will continue indefinitely. A substantial award for non-economic loss is required.

Treatment

21. The plaintiff has taken anti-depressant medication for many years. He will need to do continue to do so for the foreseeable future. While he himself does not feel treatment can assist, it is recommended that he engage with a psychiatrist and a psychologist for an indefinite period. He is also a candidate for a more proactive pharmacotherapeutic regime: Dr Smith, Exhibit B.

22. Evidence summarised in the Amended Schedule of Damages sets out, after applying appropriate multipliers, what I regard as a reasonable claim for past and future treatment: MFI 1. They will be allowed.

Economic loss

23. The plaintiff has been, and is, employed as a labourer, machine operator in earthmoving excavation and construction. He is now a leading hand. A sympathetic employer allowed the plaintiff considerable latitude in relation to taking time off. The Amended Schedule of Damages relating to unpaid leave claims compensation only for time off while suffering symptoms related to injury. It appears, on the evidence, reasonable. I will allow it as I accept Dr Smith's opinion about the relationship between the consequences of injuries suffered and absenteeism. That unpaid leave led to consequent loss of superannuation payments which should also be included in the award of damages.

24. The plaintiff now has a new employer. He has not a taken time off in recent months. He does not wish to jeopardise his employment by taking time off. He, on all the evidence before me, may need to have time off in the future: Dr Smith, Exhibit B. This risk is contingent on the hoped for positive impact of any of any psychiatric and psychological treatment he receives. While his condition is chronic, with treatment, some improvement can be expected. However, given the history of regular time off over the last years there will be some impairment of future earning capacity; a buffer is called for.

25. I have a limited amount of information on which to base any calculation of future economic loss. I must make a discretionary judgment taking into account a range of possible future events. Details of time of work between 2010 and 2016 were provided; for example the plaintiff took 39 days off in 2016 but 125 days in 2013: exhibit A at [104] - [113]. He has not had much time off work recently. He presently earns between $1,450 and $1,570 a week: Exhibit A at [144]. He has 27 years until his retirement age and he expects to work until then. He fears however that were he to lose his job he would not be able find work elsewhere: Exhibit A at [144]. Were I to have an exact figure on which to base future loss the 3% tables would apply and ordinarily a 15% reduction is allowed for the vicissitudes of life. A buffer of $100,000 was claimed however the plaintiff's recent work history, the possibilities of improvement with treatment and other matters noted above require here a buffer for future economic loss of $50,000.

Aggravated damages

26. A claim is made for aggravated damages to compensate for increased and particular distress and intangible harm arising from the defendant's criminal acts toward him. It is difficult to distinguish these harms from those that will be compensated for in the claim for non-economic loss. However the plaintiff twice reached such a depth of despair that he attempted suicide. He lost trust in his parents and others. He remains scared he will be blamed for what occurred and that others will regard him less because of it. These additional and separate harms require some recognition.

Interest

27. Interest was claimed on the non-economic loss component of the award at 1%. The claim was made on the "imperfect basis" adopted by Judge Taylor SC in Shalhoub v State of New South Wales [2017] NSWDC 363, that was in turn, based on the difference between a return on a secure investment and the inflation rate. His Honour referred to MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 666. I propose here to follow Judge Taylor's approach.

Damages Awarded

AMOUNT AWARDED
General Damages	$230,000
Aggravated damages	$20,000
Interest on general and aggravated damages 1% for 25 years	$42,000
Past out of pocket expenses	$6,795
Future out of pocket expenses	$54,444
Past loss of earnings	$16,065
Past loss of Superannuation (11%)	$1,767
Future impairment of earning capacity	$50,000
TOTAL	$421,071

28. In accordance with UCPR 42.1, the defendant is to pay the plaintiff's costs as agreed or assessed.

**********

Decision last updated: 20 August 2018