SA v CH and LH (Pseudonyms)

[2022] NSWDC 140

District Court

New South Wales

Medium Neutral Citation:

SA v CH & LH (Pseudonyms) [2022] NSWDC 140

Hearing dates:

3 May 2022

Date of orders:

3 May 2022

Decision date:

03 May 2022

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [16] for orders.

Catchwords:

DAMAGES – assessment of compensatory, aggravated and exemplary damages for historical sexual abuse during childhood

Legislation Cited:

Court Suppression and Non-publication Orders Act 2016 (NSW), s 6, s 7, s 8, s 12

Crimes Act 1900 (NSW), s 66A, s 61E

Category:

Principal judgment

Parties:

SA (Plaintiff)
CH (First defendant)
LH (Second defendant)

Representation:

Counsel:
Mr D Baran (Plaintiff)
No appearance (Defendants)

Solicitors:
Mr Nicholas Dan (Plaintiff)

File Number(s):

2022/25624

Publication restriction:

A non-publication order applies to these proceedings

Judgment

Nature of case and non-publication order

1. These proceedings involve a claim by the plaintiff for damages for repeated intentional trespass to his person by two tortfeasors who, as teenagers, carried out a series of historical sexual assaults upon him commencing when the plaintiff was aged eight years. Those assaults took place between 1986 and 1987. The two teenage perpetrators were brothers and neighbours of the plaintiff.

2. As all those involved in the events complained of were minors at the time, pursuant to s 6, s 7, s 8 and s 12 of the Court Suppression and Non-publication Orders Act 2016 (NSW), for the proper administration of justice, and in the interests of the safety and wellbeing of the plaintiff, a non-publication order applies to these proceedings as the interests of open justice are outweighed by the plaintiff’s exceptional circumstances and his need for privacy. Accordingly, litigation pseudonyms have been assigned to the parties as follows:

• The plaintiff - SA

• The first defendant - CH

• The second defendant - LH.

Procedural history

3. The plaintiff’s statement of claim was filed on 28 January 2022. The defendants were each served with a copy of the statement of claim on 11 February 2022. They have not filed an appearance and they have not sought to take part in the proceedings. On 21 March 2022 a default judgment was entered against each defendant. I am satisfied from reviewing the correspondence on the court file that each defendant has been appropriately informed of today’s assessment hearing.

Facts

4. The plaintiff is presently age 43 years. He is an impressive witness. Describing the events was difficult for him. The defendant brothers are several years older than the plaintiff. Between 1986 and 1987 the defendants, as teenagers, befriended the plaintiff, who was innocent on matters of sexuality, and they heinously engaged in repeated acts of sexual depravity upon him. This has had deleteriously life changing consequences for him. In legal terms, those acts of depravity constituted repeated acts of battery that have had lasting traumatic psychological effects upon the plaintiff. These events occurred at a time when the plaintiff was legally incapable of consenting to such activity, let alone understanding the nature and the adverse long-term ramifications for him of such activity.

5. The events in question have preyed negatively upon the plaintiff’s consciousness over the years since they occurred. They have had a negative impact on his life and on his relationships. Eventually, the defendant’s conduct was brought to the attention of police and prosecuting authorities. On 5 February 2020 each defendant was convicted and sentenced for a series of sexual offences they have committed upon the plaintiff. The charges brought involved breaches of s 66A and s 61E(1) of the Crimes Act 1900 (NSW) involving sexual intercourse with a child under the age of 10 years, and indecent assault of a child under the age of 16 years. Significantly for these proceedings, because of the way historical cases of sexual abuse are treated in the criminal justice system, the defendants did not serve terms of imprisonment. Accordingly, the plaintiff feels that the crimes committed against him have not been the subject of adequate punishment.

6. The plaintiff prepared a victim impact statement in respect of those convictions. It is in evidence and describes the magnitude of the impact which those crimes have had upon his life. He described the events as having led him through a world of turmoil, isolation, suicidal ideation, including attempts at taking his life. He has poignantly described a sense of self-loathing and hatred that has permeated every aspect of his life with toxic force.

7. The plaintiff has also described that the aftermath of the pattern of sexual abuse inflicted upon him as leading to him distrusting others. He descended into the use of drugs and alcohol to numb the pain he was experiencing. Those coping mechanisms, and his related oppositional reaction to the events, have led him into conflict with the criminal law. At times his oppositional behaviour has caused him other social difficulties.

8. In his own words when he addressed the defendants in his victim impact statement, he said:

“Everything in my life suffered because of what I went through. The atomic bomb of sexual abuse that explodes in the middle of its target has destruction that reverberates for miles. This is how my life has been. My education suffered. I was unable to concentrate on what was being taught because I would be constantly thinking about what was happening to me after school. Often before we could not play any ball games until I had sexually satisfied you both. I would be anxious, scared and confused but hoping for the fun that we had previously had before my trust had been betrayed. I have been unable to maintain relationships due to trust issues and feelings of low self worth and when someone became too close I would pull away or sabotage the relationship. I feel dishonest because by not speaking out sooner I have basically lied to my family for most of my life. This has at times caused me to distance myself from my family, added to my isolation and lack of support and understanding from the people who loved me most. My work life has always been up and down as I have struggled with authority and structure and start to feel mistrust in the work place when taking instruction. I had no respect for the law and have allowed myself to do the wrong thing which has led to my own criminal record.”

9. The plaintiff has been professionally assessed by Ms Stephanie Lindsay, a social worker, psychotherapist and sexologist, who commented that he has experienced many of the adverse developmental consequences that are recognised as being common to childhood sexual abuse victims. These include an erratic employment history, recurrent depressive episodes, probable major depressive episodes, severe alcohol and drug abuse and dependence, inappropriate self-medication, difficulty maintaining emotional and romantic relationships, low self-esteem, sexual orientation confusion, lack of enjoyment in sexual activity, profound guilt and shame, anger issues, and a forensic history including a conviction of larceny, and various apprehended violence orders.

10. The plaintiff has also been professionally assessed by Dr Peter Klug, a forensic psychiatrist. He described the plaintiff as having a complex history following having been subjected to abuse by the defendants. He expressed the opinion that those events later predisposed the plaintiff to further sexual abuse which he later experienced at the hands of his parish priest, a Mr O’Hearn. Those events have been the subject of separate resolved proceedings.

11. Dr Klug regarded the plaintiff as having been psychiatrically unwell throughout his adult life to a severe degree. Dr Klug related this directly to the abuse as a child and identified his diagnosis of the plaintiff as having a chronic post-traumatic stress disorder.

12. Dr Klug indicated that the prognosis for this condition was difficult to assess. He expressed the opinion that the abuse by the defendants has had an adversely significant influence on the plaintiff’s life and it has likely given rise to the identified psychiatric problems. This has led to a lasting, major and adverse impact on the plaintiff’s social functioning and his ability to maintain close relationships. He expressed the view that the abuse by the defendants has played a significant role in the plaintiff’s current unfortunate and troubled presentation. He recommended a regime of treatment for these problems which will be costly.

Assessment of damages

13. The plaintiff’s life has been erratic. It has been filled with both external and internal trauma as described in the evidence. He has continued to suffer psychologically and is unable to rid himself of the traumatic memories of what he experienced as a child at the hands of the two defendants. His innocence was taken from him, and he has never recovered from what he has been through at the hands of those defendants. Plainly, he is entitled to significant damages as against each defendant whose separate behaviours have demonstrated equal degrees of culpability. Such damages are entirely separate from those caused by the abuse from clergy. He is entitled to a substantial award of damages for the individual acts perpetrated against him by each defendant. The egregious events entitle the plaintiff to compensatory, aggravated and exemplary damages.

Damages payable by the first defendant CH

14. As against the first defendant CH, I assess the plaintiff’s entitlement to general damages for pain, suffering, and loss of the amenity of his life in the sum of $150,000, which sum also includes an amount for aggravated damages. The plaintiff is entitled to interest on past general damages which I assess as being apportioned in the amount of $50,000 as to the past. I assess interest at 2 per cent on that amount over 10 years in the sum of $10,000. It is not possible to precisely calculate the plaintiff’s loss of earning capacity because of the intermittent nature of that loss in the past, which continues into the future. I assess that loss in the buffer amount of $75,000. The plaintiff is entitled to future treatment expenses based on the evidence of Dr Klug. I assess a buffer sum for future treatment expenses in the amount of $15,000 which is discounted to avoid overlap with the damages payable to LH. The conduct of CH towards the plaintiff was in contumelious disregard for his right to autonomy and personal well-being. For that I assess exemplary damages in the sum of $75,000 to reflect disapproval and condemnation of the actions of CH. The plaintiff is therefore awarded the total sum of $325,000 as against the first defendant CH.

Damages payable by the first defendant LH

15. As against the second defendant LH, I assess the plaintiff’s entitlement to general damages for pain, suffering, and loss of the amenity of his life in the sum of $150,000, which sum also includes an amount for aggravated damages. The plaintiff is entitled to interest on past general damages which I assess as being apportioned in the amount of $50,000 as to the past. I assess interest at 2 per cent on that amount over 10 years in the sum of $10,000. It is not possible to precisely calculate the plaintiff’s loss of earning capacity because of the intermittent nature of that loss in the past, which continues into the future. I assess that loss in the buffer amount of $75,000. The plaintiff is entitled to future treatment expenses based on the evidence of Dr Klug. I assess a buffer sum for future treatment expenses in the amount of $15,000 which is discounted to avoid overlap with the damages payable to CH. The conduct of LH towards the plaintiff was in contumelious disregard for his right to autonomy and personal well-being. For that I assess exemplary damages in the sum of $75,000 to reflect disapproval and condemnation of the actions of LH. The plaintiff is therefore awarded the total sum of $325,000 as against the second defendant LH.

Orders

16. I make the following orders:

1. Pursuant to s 6, s 7, s 8 and s 12 of the Court Suppression and Non-publication Orders Act 2016 (NSW), the names of the plaintiff and the defendants, and any details that might tend to identify them are to remain suppressed and prohibited from publication pending the further order of the Court;

2. Verdict and judgment for the plaintiff against the first defendant CH in the sum of $325,000;

3. Verdict and judgment for the plaintiff against the second defendant LH in the sum of $325,000;

4. The defendants are to pay the plaintiff’s costs of the proceedings against them;

5. The Court Book Exhibit “A” and the plaintiff’s chronology Exhibit “B”, are to be returned to the plaintiff;

6. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 03 May 2022