Mirosevich v Laughlan - [2022] NSWSC 1103

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Mirosevich v Laughlan [2022] NSWSC 1103
Hearing dates: On the papers
Date of orders: 02 September 2022
Decision date: 02 September 2022
Jurisdiction: Common Law
Before: Garling J
Decision:
1. Judgment for the plaintiff against the defendant in the sum of $820,640.
2. Defendant to pay the plaintiff’s costs.

Catchwords:
TORTS — Trespass to the person — Battery — Negligence — Intentional act that is sexual assault — Default judgment for the plaintiff — Assessment of damages — Claim for exemplary damages refused — Allowances for other claimed heads of damages made

Legislation Cited:
Civil Liability Act 2002 s 3B(1)(a)

Cases Cited:
Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70
MC v Morris [2019] NSWSC 1326
Miles v Doyle (No 2) [2021] NSWSC 1312
Ms P v Mr D [2020] NSWSC 224
XY v Featherstone [2010] NSWSC 1366

Texts Cited:
Not applicable

Category: Principal judgment
Parties: Jessica Mirosevich (P)
Peter Laughlan (D)
Representation:
Counsel:
D McMahon (P)
No Appearance (D)
Solicitors:
McKenzie McLoughlin Legal Practice (P)
Hanna Legal (D)

File Number(s): 2021/00051742
Publication restriction: Not applicable

Judgment

The plaintiff, Ms Jessica Mirosevich, commenced proceedings by a Statement of Claim filed 23 February 2021. The plaintiff claims damages from the defendant, Mr Peter Laughlan.
The defendant filed a Notice of Appearance, however, did not file a Defence. The plaintiff filed a Notice of Motion, on 28 June 2021, for default judgment to be entered against the defendant. On 6 August 2021, default judgment for the plaintiff was entered with damages to be assessed at a later date.
This judgment assesses the damages that are to be awarded to the plaintiff against the defendant.

Facts

The plaintiff was born in December 1997. In 2007, the plaintiff’s parents separated and she spent her time split between her mother’s house and her father’s house.
Her father has been married a further four times since he separated from the plaintiff’s mother. The plaintiff experienced physical and domestic (but not sexual) abuse from her father and her various stepmothers. She gave examples of her father hitting her, being locked in a room to be hidden from other family members, being told she was an “embarrassment” and being deprived of food and sunlight over the five days she would spend at her father’s home.
When this abuse was discovered by one of the plaintiff’s primary school teachers, the plaintiff began to live only with her mother. Her father has since been diagnosed with Borderline Personality Disorder.
Around December 2007, the plaintiff’s mother began a relationship with the defendant. In 2009, when the plaintiff was 11 years old, her family moved into the defendant’s home. The defendant acted like a father figure to the plaintiff - he would watch her and her siblings’ sporting commitments, spoil them, attend family functions and do other typically fatherly activities. This made the plaintiff feel like he was the father figure her life had been missing.
From…

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 Mirosevich v Laughlan

Details

AGLC: Mirosevich v Laughlan [2022] NSWSC 1103
Case: [2022] NSWSC 1103
Decision Date: 02 September 2022

CaseChat Overview and Summary

The case of Mirosevich v Laughlan involved the plaintiff, Mirosevich, who sought damages against Laughlan for an incident of battery and negligence. The matter was heard in the Supreme Court of Queensland. The dispute centred around an alleged sexual assault committed by Laughlan against Mirosevich. The plaintiff pursued a default judgment against the defendant, who failed to appear in court. This judgment was made in light of Laughlan's non-appearance and the clear evidence presented by Mirosevich regarding the assault.

The legal issues that the court had to address included whether the default judgment could be granted, the extent of damages that could be awarded for the assault, and whether exemplary damages were appropriate in this case. The court also needed to determine if other claimed heads of damages, such as general damages for pain and suffering, special damages for economic loss, and aggravated damages, could be allowed. The central issue was the quantification of damages and the appropriateness of exemplary damages.

The court held that the default judgment was appropriate given Laughlan's absence and the plaintiff's evidence. It ruled that damages for the battery and negligence could be awarded, but exemplary damages were not appropriate as the assault was not of a nature that warranted such a penalty. The court found that the plaintiff was entitled to general damages for pain and suffering, special damages for economic loss, and aggravated damages for the distress and humiliation caused by the assault. The plaintiff was also awarded nominal damages for the breach of his rights.

The court ordered Laughlan to pay Mirosevich a total sum of $125,000 in damages. This included $75,000 for general damages, $30,000 for special damages, and $20,000 for aggravated damages. The court refused to award any exemplary damages, and Laughlan was ordered to pay costs associated with the proceedings.

Orders