P2 v D2

[2019] NSWDC 84

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

P2 v D2 [2019] NSWDC 84

Hearing dates:

20 March 2019

Date of orders:

29 March 2019

Decision date:

29 March 2019

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   Judgment for the plaintiff for $650,670.
(2)   Order the defendant to pay the plaintiff’s costs.
(3)   Grant leave to the parties to approach my Associate within 7 days, if either party seeks a different costs order.

Catchwords:

TORTS – sexual assault – child assaulted by adult over 40 years ago – whether there were assaults in addition to the five assaults for which defendant was sentenced

DAMAGES –general damages – interest upon past general damages – out-of-pocket expenses – economic loss and future loss of earning capacity

DAMAGES – effect of payment of victims support – s 55 Victims Rights and Support Act 2013 (NSW)

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Victims Rights and Support Act 2013 (NSW)

Cases Cited:

Castellain v Preston (1883) 11 QBD 380
Dryden v Jones [2018] NSWDC 223
MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657
Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1
New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496
Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1
M v Nesbitt [2012] NSWDC 152
Orakpo v Manson Investments Ltd [1978] AC 95
P v D [2018] NSWDC 277
Planet Fisheries Pty Limited v La Rosa [1968] NCA 62; (1968) 119 CLR 118
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Whitfield v De Lauret & Co Limited [1920] HCA 75; (1920) 29 CLR 71

Texts Cited:

The Laws of Australia, Thomson Reuters, paras 22.1.3450; 22.1.3500

Category:

Principal judgment

Parties:

P2 (Plaintiff)
D2 (Defendant)

Representation:

Counsel:
P Tierney (Plaintiff)
J Pearson (Defendant)

  Solicitors:
Johnsons Law Group (Plaintiff)
John Hall Lawyers (Defendant)

File Number(s):

2018/150246

Publication restriction:

Order, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, directing that there be no publication of the name or address of either party or any information tending to reveal the identity or address of either party upon the grounds that:(a) the order is necessary to avoid causing undue distress or embarrassment to the plaintiff who was the victim of offences of a sexual nature committed by the defendant, when the plaintiff was a child;(b) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

Judgment

Introduction

1. The plaintiff is a very admirable person. A number of terrible things have happened to her. At age 6 she was removed from her biological family and placed into State care. In the first year in that care she had 26 foster placements. She was eventually fostered by a family between the ages of 7 and 18. Both foster parents were physically cruel to her. In later life the plaintiff suffered a serious injury to her lower back which still causes her problems. Worst of all were the sexual assaults committed by the defendant, her foster father, upon her when she was aged between 12 and 16 years old. Those assaults, and their aftermath, have blighted her life. In spite of that the plaintiff has, after leaving home, obtained an education and qualifications, worked hard in a difficult industry and now is herself a foster carer for three young children. In spite of the vile depredations of the defendant, the plaintiff has shown herself to be a person of great fortitude and strong character.

The assaults

2. By a Statement of Claim filed on 14 May 2018 the plaintiff sued the defendant for damages caused by the sexual assaults committed by the defendant upon her. Paragraph 3 of the Statement of Claim particularised five specific assaults, and also alleged “other additional assaults during the period”, meaning between 1973 and 1977.

3. In 2014 the plaintiff made a statement to the police about the assaults committed upon her. As a result the defendant was charged with the five specific assaults pleaded in particulars (a)-(e) of para 3 of the Statement of claim.

4. In 2015 the defendant pleaded guilty in this court and was sentenced to terms of imprisonment which are still running.

5. The plaintiff became quite distressed when giving evidence-in-chief about the assaults. Counsel then took the very sensible approach of asking the plaintiff to read a written summary of the five assaults and indicate whether or not that summary was accurate. The summary can be found in the document behind tab 7 in Exhibit PX1, at paras 11-18. I will not repeat in this judgment the distressing details of the assaults. I accept the plaintiff as a witness of truth and in any event there was, quite properly, no cross-examination upon the matter. Three of the five assaults to which the defendant pleaded guilty involved vaginal intercourse when the plaintiff was only between 12 and 15 years old.

6. The Defence filed on 14 June 2018 did not admit the pleaded assaults. That document should never have been filed. The defendant had pleaded guilty to five serious criminal charges three years earlier, being the same assaults alleged in particulars (a)-(e) of para 3 of the Statement of Claim. If application had been made, I would have struck out the Defence. However, counsel for the defendant took the proper and sensible approach at the hearing of admitting the five pleaded assaults and indicating that the matter was one for assessment of damages only.

The plaintiff’s evidence

7. The plaintiff is now 57 years old. When she was six years old she was taken away from her biological family by the government. In the next 12 months she had numerous placements with foster families for very short periods. In 1967 she was fostered by the defendant and his wife. They already had two children of their own.

8. I have recited above the evidence concerning the five assaults to which the defendant pleaded guilty. The plaintiff said that the defendant told her not to tell anyone, or he would send her away. The plaintiff said that the intercourse was “awful, uncomfortable and painful”. She said that when it first happened she felt “I lost my dad”. The plaintiff could not talk to him any more and she was scared to be alone in the house with him. The assaults generally occurred after school, when the defendant was at home from work, but his wife was away working.

9. Things came to a head when the plaintiff was about 18 and she returned home late from work one night. In an argument with her foster mother, she disclosed that her foster father had been assaulting her sexually. The plaintiff said that she felt shattered at that time because she had told her foster mother about the assaults. She said “I lost my mum that day”.

10. The plaintiff then left the family home and went to live with a friend in another suburb. She did keep in touch with her foster mother until her late twenties.

11. The plaintiff said that she has never stopped thinking about the assaults. She had daily thoughts about the assaults. She said that every day she felt “angry and sad and yuck”.

12. The plaintiff obtained qualifications as a chef and worked for 37 years in that industry. She gave up work three years ago.

13. The plaintiff said that she had had no relationships with men. She tried dating in her early twenties, but not after age 23. She said “I can’t have anyone come near me”. She did have platonic friendships.

14. Since giving up work in 2016 the plaintiff has cared for three foster children. Until then most of her time was spent alone. She said “cooking was my safe area, going home was my private area”.

15. The foster children give her great joy. She says that she loves them, and that is a feeling that she never had as a child.

16. The plaintiff has seen a counsellor Ms Vracar and a psychologist Dr Pignataro. She said that Dr Pignataro had explained to her “why I am the way I am”. Dr Pignataro had suggested that she have continuing treatment by way of counselling, and the plaintiff said that she wished to have that.

17. The plaintiff was carefully cross-examined by counsel for the defendant. She acknowledged that she had a work accident in about 2000 which left her with a serious injury to her back. She had nerve damage in her legs. She had bad pain and could not work for two years. At first she walked “funny” and she had weak legs. The plaintiff said that she has a disability pension because of loss of mobility and trouble standing for long periods. Presumably the plaintiff has had this pension since giving up work in 2016.

18. The plaintiff acknowledged that she had partially completed a diploma in occupational health and safety, which she enjoyed. She said that work-related injuries involving her lower back, plus a fear of engaging with men, had restricted her capacity to work effectively. It was for those two reasons that she was considering a change of career to work in occupational health and safety. However, she is now fully occupied caring for three foster children. She found that having the children kept her more active and she was less depressed.

19. I accept the plaintiff entirely as a witness of truth, and no contrary submission was made by counsel for the defendant.

Were there other assaults?

20. The plaintiff’s oral evidence was confined to the five sexual assaults to which the defendant pleaded guilty. The reports from psychologists and counsellors were admitted into evidence without limitation. In relation to histories given by the plaintiff in those reports, they are evidence not only that such history was given, but also evidence of the truth of the history. There were two reports from Dr Pignataro, a consultant clinical psychologist. The first report was dated 24 January 2016 and was addressed to the Commissioner of Victims Rights. The plaintiff made application for, and received, a victims support payment, pursuant to the Victims Rights and Support Act 2013 (NSW). In para 9 of that report Dr Pignataro recorded the following:

“Between the ages of 6 and 7, she had relocated 26 times to various foster homes. She had not had a stable experience as a child. She felt relieved when she was placed in a permanent foster home following her numerous movements to different homes. However, she reported that such relief soon changed as she experienced a highly authoritarian foster father and mother who demanded obedience from her at all times. It was during this period that she endured significant sexual abuse of the most serious kind. She was forced to perform numerous sex activities for her foster father that included oral sex, digital and penile penetration, inappropriate touching and fondling of her body and kissing. Such acts would occur daily multiple times. These acts occurred for years. She reported that her foster mother was rigid with rules and often physically punished her for failing to adhere to her ways at home.”

21. A paragraph to similar effect appeared in the second report of Dr Pignataro, dated 7 December 2018, which was sent to the plaintiff’s solicitor. The counselling notes referred to below also recorded such allegations.

22. Counsel for the defendant submitted that no account should be taken of the allegation in particular (f) under para 3 of the Statement of Claim that there were “other additional assaults during the period”. He submitted that since these additional assaults had not been particularised further, they should not be taken into account. I enquired of counsel for the defendant whether the defendant had ever sought particulars of these pleaded further assaults, and I did not receive a response. I assume that no particulars were ever sought.

23. The allegation that there were other assaults, which took place on numerous occasions over many years, and which involved acts additional to those set out in the five criminal charges, was there to be seen in the Statement of Claim and in the two reports of Dr Pignataro. As previously recited, no limiting order was sought in relation to the admission of his evidence. Nor was there any cross-examination directed towards that topic.

24. In those circumstances I find that there were numerous other assaults, in additional to the five assaults for which the defendant was sentenced to imprisonment, by the defendant upon the plaintiff of a sexual nature, as set out in the history given to Dr Pignataro by the plaintiff. I make the following findings of fact:

1. The plaintiff was forced to perform numerous sex activities for the defendant, her foster father, which included oral sex, digital and penile penetration, inappropriate touching and fondling of her body and kissing.

2. Such acts would occur daily multiple times.

3. These acts occurred for years.

Expert evidence

25. The plaintiff received counselling at the Liverpool Women’s Health Centre between 2008 and 2010. The notes of that Centre record that the plaintiff “was sexually assaulted by her adoptive father for most of her childhood and her adolescent years”. The notes record a diagnosis of Depression and Anxiety. The plaintiff reported experiencing nightmares, hypervigilance, and intrusive flashbacks to childhood memories of abuse. She reported struggling to trust people, not having a sense of permanence in her life, emotional dysregulation, grief and loss of biological family and other significant relationships, as well as social isolation.

26. Counselling was provided by Victims Services. The plaintiff saw Ms Vracar, a psychologist. In a report dated 20 October 2012, Ms Vracar detailed physical cruelty visited upon the plaintiff by her foster parents. While that is a matter of history, there is no evidence to suggest that the physical cruelty led to the plaintiff’s long term psychiatric and psychological problems. In any event, the defendant made no attempt to disentangle the effect of the physical cruelty from the sexual abuse committed by the defendant – Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

27. Testing administered by Ms Vracar showed depression to fall in the extremely severe range. Anxiety was in the extremely severe range and stress was in the severe range. Ms Vracar suggested further counselling. In a report dated 20 February 2013 Ms Vracar referred to two further sessions of counselling. Psychological testing in relation to depression, anxiety and stress revealed the same scores.

28. Previous reference has been made to the two reports of Dr Pignataro. At his first assessment, he found symptoms of distress, state and trait anxiety, major depression, and post-traumatic stress. His opinion was that the plaintiff, applying the DSM criteria, had “developed a mixed presentation of post-traumatic stress disorder and major depression of moderate severity”.

29. In his second report Dr Pignataro expressed the following opinion:

“49.    [The plaintiff] has endured a highly disturbed developmental history that was pronounced for childhood sexual abuse. These experiences remain and have remained regardless of the intervention undertaken, which has assisted her to develop a way of living that has allowed her to accept her disturbed personal history. She is a victim of child sex slavery and had no means to overcome the significant abuse endured as a foster child.

50.   To her credit, [the plaintiff] has been able to define her past and obtain meaning in everyday living by being a foster parent. I have understood that this has allowed her to demonstrate her capacity to model a caring parent to vulnerable children, which has made her accept her own past model of absent care and protection. In a way, she is demonstrating to herself that her life could have been different if conditions of safety and security were available to her during her early developmental years.

51.   Psychological intervention has assisted [the plaintiff] in managing her life and being able to sustain a level of normalcy, which she has been able to do in her own meaningful way as a foster parent. The need for continued intervention is not that she will significantly improve beyond the current mental state and functioning but rather to maintain and preserve her current level of functioning.

52.   [The plaintiff] continues to experience residual symptoms of post-traumatic stress disorder. In addition, she has ongoing symptoms that suggest that generalized anxiety, social anxiety disorder and moderate depression disorder as characterised by the Diagnostic and Statistical Manual of Mental Health Disorders – 5th Edition (DSM-V).

53.   I doubt whether [the plaintiff] will ever overcome the traumatic experience of her early years that has shaped her and continued to shape her personal identity, agency and enthusiasm for life.”

30. In answer to a specific question concerning capacity for work, Dr Pignataro said:

“[The plaintiff] could no longer work with men while working as a chef. She had been triggered off by men at work because of their aggression and hostility towards her that reminded her of the past while in foster care.”

31. There is no indication in the reports of Dr Pignataro that he knew of the plaintiff’s serious back injury, or that she had been granted a disability pension because of her lower back and mobility problems. That was the plaintiff’s own evidence.

32. I accept the opinions of Ms Vracar and Dr Pignataro. I accept their diagnoses. I find that the plaintiff suffers from the condition set out in the report of Dr Pignataro and that such condition is ongoing and unlikely to remit, even with continued treatment.

33. In his second report Dr Pignataro said:

“[The plaintiff] is responding well to the current treatment plan and hence it should be supported unless there is sufficient independence to self-manage without it. The report by Lubica Vracar states that treatment involves cognitive behaviour therapy (CBT) which is a form of taking therapy that aims at identifying distorted negative thinking with cognitive techniques. It is well researched in the treatment of various disorders such as anxiety, depression and post-traumatic stress disorder. Ongoing therapy at the current fortnightly frequency should occur indefinitely. The cost of such intervention per year is approximately $5,200 (i.e. $200 per session with 26 sessions per year).”

34. That was the only evidence on the topic. Counsel for the defendant in final submissions accepted that a future out-of-pocket expense in accordance with the recommendation of Dr Pignataro should form part of the plaintiff’s damages.

General damages

35. Counsel for the plaintiff submitted that general damages should be $300,000. Counsel for the defendant submitted that general damages should be $200,000. The defendant referred me to two decisions of fellow judges of the District Court where general damages had been awarded for sexual assault. They were the cases of M v Nesbitt [2012] NSWDC 152 and Dryden v Jones [2018] NSWDC 223. In Nesbitt the general damages were assessed at $250,000, and in Dryden general damages were assessed at $230,000. I referred counsel to my own decision in P v D [2018] NSWDC 277, in which I assessed general damages (arising out of sexual assaults by two perpetrators) at $360,000.

36. I have not obtained assistance from reading any of those cases. As counsel for the defendant acknowledged, each case has to be decided on its own facts. Further, I am bound by the decision of the High Court in Planet Fisheries Pty Limited v La Rosa [1968] HCA 62; (1968) 119 CLR 118, where the court said at 125:

“The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. What was sought to be done in this case by the appellant's counsel, namely, to derive a norm or standard from a group of judgments of this Court reviewing awards of damages on appeal is erroneous. The same would be true if the same course were sought to be pursued in relation to awards of a Supreme Court or of a County or District Court. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet's counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand.”

37. Or, as Christopher Marlowe said, almost 400 years earlier, “comparisons are odious”.

38. I have recited above the evidence of the plaintiff, which I accept, concerning the effect of the sexual assaults upon her life. I have also recited above the expert evidence concerning those effects. The defendant tendered no reports and did not cross-examine any of the plaintiff’s experts.

39. It is now 45 years since the first assault occurred, and the plaintiff is still suffering. It is likely, on the evidence, that she will continue to suffer for the rest of her life.

40. I find that the figure of $300,000 for general damages sought by counsel for the plaintiff is the appropriate award. There are many who would regard it as modest, given the plaintiff’s suffering. The judgment will include an award of $300,000 for general damages.

41. The plaintiff also sought interest on general damages. The power to award interest comes from s 100 of the Civil Procedure Act 2005 (NSW). That section entitles the court to adopt the rate of interest it sees fit. The High Court has prescribed the appropriate approach to calculation of interest on past general damages in MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657.

42. Of the $300,000 I award for general damages, I assess that $250,000 relates to the past. While the plaintiff’s suffering commenced at age 12, 45 years ago, counsel for the plaintiff only sought interest for the last 40 years i.e. after the plaintiff turned 18 years of age. That concession works in favour of the defendant. The calculation for interest on past general damages is: $250,000 x 2% x 40 = $200,000.

43. There will be an award for interest on past general damages of $200,000.

Aggravated damages

44. Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like – Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 8.

45. In State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496, Justice Hodgson in the Court of Appeal dealt with what it is that distinguishes aggravated damages from ordinary compensatory damages. He noted that aggravated damages can be awarded in cases where ordinary compensatory damages for injury to feelings are generally awarded, such as for assault – at [129]. He therefore posed the question – what can the additional aggravated damages be compensation for, when damages for injury to feelings have already been included in ordinary compensatory damages?

46. His Honour’s answer to this question at [131] was:

“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.”

47. Repeated sexual assaults upon a 12 year old girl go “beyond ordinary human fallibility”. They constitute “serious misconduct by the defendant”. That misconduct has caused hurt feelings, and makes it difficult to quantify appropriate damages. Thus the court should aim towards the upper limit of the wide range of damages which might conceivably be justified.

48. It is to be noted that in Riley Justice Hodgson found that the police conduct was not beyond ordinary human fallibility and so there was no increment to the ordinary compensatory damages for hurt feelings.

49. Counsel for the plaintiff submitted that the appropriate figure for aggravated damages should be $50,000. Counsel for the defendant made no submission about any particular amount.

50. So that the plaintiff can be fully compensated for the injury to her feelings, which persists to this day, I find that the appropriate figure for aggravated damages is $50,000. No interest was sought upon that amount.

Exemplary damages

51. Exemplary damages are only awarded where there is high-handed, insolent, vindictive or malicious conduct amounting to exhibiting a conscious wrongdoing in contumelious disregard of another’s rights – Whitfield v De Lauret & Co Limited [1920] HCA 75; (1920) 29 CLR 71 at 77, Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at [14].

52. Both counsel were agreed that in relation to the five assaults for which the defendant was sentenced to imprisonment, there could not be an award of exemplary damages – Gray.

53. The only assaults for which exemplary damages could be awarded at law are those described in particular (f) under para 3 of the Statement of Claim as “other additional assaults during the period”. My findings in relation to the occurrence of these assaults, their severity and their frequency, appear above.

54. It is beyond argument that such assaults constituted malicious conduct being a conscious wrongdoing in contumelious disregard of another’s rights. In this case they were the rights of a child of tender years to be protected by her foster father from harm. Instead of affording such protection, the defendant visited evil upon the plaintiff.

55. Counsel for the plaintiff submitted that the appropriate award for exemplary damages was $25,000. Counsel for the defendant opposed any award at all, on the basis that the plaintiff could not claim for those additional assaults as they were not properly particularised. I have dealt with that argument above, unfavourably to the defendant.

56. I award exemplary damages of $25,000 relating to the prolonged course of sexual assault of the plaintiff by the defendant, over and above the five assaults to which the defendant pleaded guilty. Again, there are many who would regard such an award as modest.

Out-of-pocket expenses

57. During final submissions counsel for the plaintiff conceded that there was no evidence to support an award for out-of-pocket expenses.

Future out-of-pocket expenses

58. During final submissions counsel for the defendant very properly and frankly indicated that he had nothing to say in opposition to the court adopting the quantification put forward by Dr Pignataro.

59. The plaintiff is 57 years old. Applying the Medium Life Expectancy tables, she has a life expectancy of 31 years. The 3% discount tables are applicable at common law. The 3% multiplier for 31 years is 1059.2. The cost of counselling, which the plaintiff will need for the rest of her life according to Dr Pignataro is $100 per week. The calculation is: $100 x 1,059.2 = $105,920. There is no discount for vicissitudes, as this is taken into account in adopting the Medium Life Expectancy tables.

60. There will be an award for future out-of-pocket expenses of $105,920.

Past economic loss

61. The plaintiff gave up work three years ago. On her evidence, this was because of a combination of factors. Her back and leg problems had led to a loss of mobility, for which she started to receive the disability pension. She also had difficulties working in the kitchen environment as a chef, in the presence of sometimes hostile and aggressive men. The plaintiff has re-trained and almost completed a qualification in occupational health and safety. There is no indication that she could not do that job if she so chose. However, the plaintiff has taken on the responsibility of caring for three foster children, and seems very content to give them full-time love and care.

62. I find that the primary reason for the plaintiff giving up work three years ago was because of her back and leg problems, which have nothing to do with her claim against the defendant. I also find that her decision not to work for the last three years has been largely voluntary, and that through caring for the three foster children the plaintiff has actually achieved some benefit to her psyche. She expressed no desire to go back to work, and indeed the claim for future loss of earning capacity was abandoned during final submissions.

63. I accept the submission of counsel for the defendant that the plaintiff has not established a past economic loss. There will be no award under this head of damages.

Victims Support payment

64. The plaintiff received payments totalling $30,250 from the Department of Justice. These were payments for victims support pursuant to the Victims Rights and Support Act 2013.

65. Section 18 of that Act defines “victims support” to mean “support in the form of approved counselling services, financial support or a recognition payment under the Scheme”.

66. Section 55 of the Act provides as follows:

“55 Effect of approval on subsequent civil proceedings

(1) This section applies to civil proceedings commenced or maintained in respect of an injury or loss sustained by a person to whom the giving of victims support has been approved under this Part on the basis of the same facts as those on which the civil proceedings are based.

(2) Subject to subsection (3), approval of the giving of victims support does not affect a person’s right to commence or maintain civil proceedings, and damages in civil proceedings must be assessed without regard to the approval.

(3) On the payment to a person of approved victims support, the person’s right to commence or maintain civil proceedings against any other person in respect of the same facts as those on which the approval is based is, by operation of this section, subrogated to the State to the extent of the amount of support so paid.

(4) This section does not limit the operation of section 74 or 102.”

67. Sections 74 and 102 have no application in the present circumstances. By sub s 2, I must assess damages without regard to the approval, although sub s (2) is “subject to sub s (3)”.

68. Section 55(3) speaks of the subrogation to the State of the rights of the recipient of the victims support payment “to the extent of the amount of the support so paid”. Under the general law of insurance, where an insurer has indemnified an insured in respect of a loss suffered, the insurer is entitled to “stand in the shoes” of the insured and receive the benefit of all rights and remedies which the insured may have against a third party in respect of the loss – The Laws of Australia, Thomson Reuters, para 22.1.3450. Once an insurer has indemnified an insured against the insured loss, the insurer is subrogated to the position of the insured and is entitled to the rights of the insured against third parties – The Laws of Australia, Thomson Reuters, para 22.1.3500.

69. Taking into account those general principles in relation to the doctrine of subrogation, I find that the effect of s 55(3) of the Act is that account has to be taken of the victims support payment received by the plaintiff, and that payment must be deducted from the plaintiff’s damages. The rationale behind the doctrine of subrogation is to prevent unjust enrichment on the part of the insured – Orakpo v Manson Investments Ltd [1978] AC 95. If I did not deduct the victims support payment, then the plaintiff could effectively receive that money twice, once from the Department of Justice, and once from any full recovery against the defendant.

70. Further, it has been held that if the insured has been paid in full by a wrongdoer and the loss is thereby reduced, then the insurer is entitled to receive from the insured the advantages received from the third party – Castellain v Preston (1883) 11 QBD 380 at 391. This is another indication that account must be taken of the victims support payment made by the Department of Justice, so that there is no potential for the plaintiff to receive it twice. This means that the sum of $30,250 must be deducted from the damages assessed. Both counsel agreed that this was the correct approach.

71. In those circumstances the plaintiff will come under no obligation to repay the State for the victims support payment which she received. If the State sees fit to bring subrogated recovery proceedings against the defendant for $30,250, it is free to do so.

Conclusions and Orders

72. The damages which are awarded to the plaintiff are set out in the following table:

HEAD OF DAMAGE	AMOUNT
General damages	$300,000
Interest on past general damages	$200,000
Aggravated damages	$50,000
Exemplary damages	$25,000
Future out-of-pocket expenses	$105,920
Sub-total	$680,920
Less Victims Support payment	-$30,250
TOTAL	$650,670

73. My orders are:

1. Judgment for the plaintiff for $650,670.

2. Order the defendant to pay the plaintiff’s costs.

3. Grant leave to the parties to approach my Associate within 7 days, if either party seeks a different costs order

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Amendments

29 March 2019 - Format

Decision last updated: 29 March 2019