20 – 24, 29 March; 12 April 2023 (Written submissions – 17, 24 April 2023)
JUDGMENT OF:
Porter AJ
CATCHWORDS:
Damages – Generally – Exemplary, punitive, aggravated and like damages – Exemplary damages – Action for damages for sexual abuse – Where defendant had been substantially punished in criminal proceedings – Discretion to award exemplary damages in an unusual case – Defendant's conduct after abuse ended and
of civil proceedings justified an award of exemplary damages.
Damages – Assessment of damages in tort – Generally – Limits on recovery of damages – Causation – Other cases and matters – Action for damages for sexual abuse when a high school student – Claim for loss of earning capacity where plaintiff chose less rewarding career than would otherwise have been available – Opted for teaching role motivated by desire to protect children – Decision not directly attributable to later diagnosed PTSD but where developing psychological symptoms present – Chain of causation unbroken –
Damages – Assessment of damages in tort – Personal injury – Other heads of damages – Gratuitous care – Civil liability legislation modifications – Civil Liability Act2002 allowed damages for gratuitous services subject to a threshold – Where previous legislation prevented award if the plaintiff had not paid or was not liable to pay for services – Previous legislation repealed – Effect of repeal on claim where Civil Liability Act did not apply to plaintiff's action – Plaintiff entitled to award.
Aust Dig Damages [1140]
Damages – Particular awards of general damages – Tasmania – Sexual abuse of female high school student by teacher over a period of about 18 months – Emotional and psychological harm including complex PTSD –
Award of $275,000 including aggravated damages.
Aust Dig Damages [1173]
Statutes – Acts of Parliament – Repeal – Effect – Revival of common law – Legislative provision prevented an award of damages for gratuitous services where plaintiff had not paid or was not liable to pay for such
services – Where that provision repealed by amendment to Civil Liability Act2002 which allowed damages for gratuitous services subject to a threshold – Effect of repeal on claim where Civil Liability Act did not apply to plaintiff's action – Right to damages for gratuitous services at common law revived.
[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.
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AGLC
Munting v Pollard [2024] TASSC 30
Case
[2024] TASSC 30
Decision Date
CaseChat Overview and Summary
In the Federal Court, Munting sought damages from Pollard for sexual abuse that had occurred over a number of years. Pollard had previously been found guilty of the offences and served a term of imprisonment. The question for the Court was whether exemplary damages could be awarded to the plaintiff despite Pollard having already been punished for his criminal conduct. The Court noted that the award of exemplary damages was an exceptional remedy and was generally reserved for cases where the defendant's conduct was particularly reprehensible. In this case, the Court considered the defendant's conduct both during and after the abuse, and determined that Pollard's conduct was sufficiently egregious to warrant an award of exemplary damages. The Court noted that Pollard had shown no remorse for his actions and had continued to deny the abuse even after being found guilty in criminal proceedings.
The Court concluded that the award of exemplary damages was appropriate in this unusual case, and that the amount of damages should reflect the particular circumstances of the case. The Court also noted that the award of exemplary damages was not intended to serve as a punishment for the defendant, but rather to provide the plaintiff with some measure of redress for the harm caused by Pollard's conduct. The Court ultimately awarded the plaintiff exemplary damages in the sum of $100,000. This decision provides guidance for courts considering the award of exemplary damages in cases of sexual abuse, and highlights the importance of considering the particular circumstances of each case when determining the appropriate amount of damages.