SMD v JDW

[2022] NSWDC 156

District Court

New South Wales

Medium Neutral Citation:

SMD v JDW [2022] NSWDC 156

Hearing dates:

12 May 2022

Date of orders:

12 May 2022

Decision date:

12 May 2022

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Order:

(1) Orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) directing that there be no publication of the names or addresses 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 a crime 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 the public interest significantly outweighs the public interest in open justice.

(c)   The parties’ names are accordingly changed to SMD v JDW.

(2)   Judgment for the plaintiff for $534,000.

(3)   Defendant pay plaintiff’s costs.

(4)   Liberty to restore in relation to interest and costs.

(5)   Exhibits retained until further order.

Catchwords:

TORT - Assessing damages for sexual assault - defendant convicted of criminal offences against the plaintiff over a lengthy period - general and aggravated damages - whether a claim for exemplary damages could be made notwithstanding the imposition of a substantial term of imprisonment on the defendant - exemplary damages not awarded - past and future economic loss - future out of pocket expenses

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 3B(1), 15B and 18(1)

Court Suppression and Non-publication Orders Act 2010 (NSW) s 7

Victims’ Rights and Support Act 2013 (NSW)

Cases Cited:

AM v KW [2005] NSWSC 876

Cheng v Farjudi (2016) 93 NSWLR 95

Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70

Michael Dryden v David John Jones [2018] NSWDC 223

Miles v Doyle (No 2) [2021] NSWSC 1312

New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57

Wagner v Nine Network Australia Ltd [2019] QSC 284; [2020] QCA 221

Woodward v R [2017] NSWCCA 44

Category:

Principal judgment

Parties:

Plaintiff:
Ms SMD
Defendant:
Mr JDW (self-represented)

Representation:

Counsel:
Plaintiff:
Ms M Campbell

Solicitors:
Plaintiff:
Brydens Lawyers

File Number(s):

2021/ 00070672

Judgment

The parties and the proceedings

1. The plaintiff brings proceedings for damages for injury and other loss arising from intentional torts, being the various sexual assaults committed by the defendant upon the plaintiff over a period of years when she was a child.

2. The plaintiff and the defendant are brother and sister. The defendant is now in prison having been convicted of a series of sexual assault charges concerning the plaintiff. He did not file a defence, and he told the court that understood that these proceedings are by way of assessment of damages. He does not contest any of the factual material. He led no evidence did not seek to cross-examine and told the court:

“I know I did wrong and I’m paying for it. I deserved it. I’m trying to do my time. I don’t want to traumatise [the plaintiff] any more.”

The conduct of the assessment hearing

3. Orders have been made under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) for the suppression of names and identifying features. The courtroom was arranged so that the parties could not see each other. The plaintiff was not called to give evidence, relying instead upon the material set out in the Court Book (Exhibit A) and the defendant expressly acknowledged that he had no wish to put any questions to her or to make any submissions to the court. As he was representing himself, I explained the court procedure to him, ensured that he had been served with all relevant material and understood the nature of the proceedings and invited him to raise any questions he may have at any time.

The evidence

4. While it is customary to set out details of the criminal acts and subsequent convictions for these, I propose to do so only very briefly, as both the plaintiff and defendant were in the deepest distress and wept throughout the hearing. The defendant told the court that he found these proceedings triggering, and I have no doubt the plaintiff felt the same.

5. As is set out in the helpful chronology provided by Ms Campbell, sexual assaults commenced on the plaintiff in about 1971 when she was 5 years old. The six charged incidents occurred between 1971 and 1978, ending only after the defendant married and moved into a home three houses away from where the plaintiff continued to live with her parents until 1990. The plaintiff’s evidence to the court was that, in addition to these sexual assaults, the defendant also physically hurt her by cruel physical treatment of her which I will not describe.

6. As is set out in the report of Dr Jungfer, this long period of cruelty and abuse, in which she was living in a family home where she was scared to be alone in case there was a fresh assault, had the most profound impact on the plaintiff’s emotional wellbeing. The subsequent revelation of these events by the plaintiff, long after they occurred, fragmented her family, about which she feels further distress.

7. Although the plaintiff married, had two children and was able to enrol in an accounting course, her psychological wellbeing has been so badly affected that she has been unable to complete her accountancy studies or work full-time, and she is concerned about the impact that the criminal and civil proceedings have had and will have on her marriage and family relations.

8. The plaintiff has served a Schedule of Damages on the defendant. He has made no submissions on damages beyond observing that if he had “a million dollars”, he would have given it all to the plaintiff, although not even this sum could compensate for the wrong he had done to her.

9. There is no evidence of any award to the plaintiff from the Victim's Support Fund: Victims’ Rights and Support Act 2013 (NSW).

General damages

10. The Civil Liability Act 2002 (NSW) does not apply to intentional acts of sexual assault of other sexual misconduct: s 3B(1). (While ss 15B and 18(1), as well as Parts 7 and 2A, continue to apply, none of those sections have any relevance to the findings in these proceedings).

11. The plaintiff's non-economic loss must be assessed according to common law principles. Such damages are at large.

12. In AM v KW [2005] NSWSC 876 at [50], Harrison AsJ, assessing damages in a sexual assault claim, noted the benefit of guidance from other cases on damages but observed that there were “surprisingly few” judgments on civil assault claims. That is no longer the case, as Haesler SC DCJ observed in Michael Dryden v David John Jones [2018] NSWDC 223 at [20]. However, exact comparisons cannot be made and, while these judgments may be a guide, each assessment involved a number of different and individual considerations.

13. In practical terms, in circumstances where the defendant does not put in issue any of the plaintiff’s claims and has told the court that “if I had a million dollars I would give it to her”, I see no reason for making orders other than for the sum Ms Campbell has sought for general damages, namely $200,000.

Aggravated damages

14. Aggravated damages are also a form of compensatory damages which are awarded to a plaintiff for injury suffered, over and above for any injury sustained, where there has been egregious conduct of a defendant towards the plaintiff: New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31].

15. It has been said that the awarding of aggravated damages for sexual assault might be particularly apt in circumstances in which the person the subject of the assault suffers the long term burden of shame, embarrassment and indignation in addition to a psychiatric illness arising out of the deliberate conduct towards him: Miles v Doyle (No 2) [2021] NSWSC 1312 at [49] per Cavanagh J.

16. Aggravated damages are normally assessed as a lump sum over and above the allowance for general damages. There is conflicting authority as to whether aggravated damages should be included in the quantum of general damages or separately assessed (Wagner v Nine Network Australia Ltd [2019] QSC 284; [2020] QCA 221). I propose to accept the sum proposed for aggravated damages ($100,000) but, as it has been set out separately in the schedule of damages served on the defendant, to record it separately from general damages.

Exemplary damages

17. The conduct of the defendant clearly warrants the award of aggravated damages. The next question is whether exemplary damages should also be awarded.

18. Although not provided for in the Schedule of Damages, Ms Campbell made an oral submission that such an award could be made, notwithstanding the principles set out in Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [40] - [44]. Ms Campbell drew my attention to paragraphs [45] and [46] of the High Court’s judgment:

“45 No doubt references to "substantial punishment" and to the need for "substantial identity" between the conduct that is the subject of the criminal and civil proceedings may lead to difficult questions of fact and degree. What is substantial punishment? Does it matter if the prosecuting authorities and the offender reach some arrangement about what will be charged and, if charged, admitted? Does it matter if for reasons personal to the accused (or for other reasons) only a nominal penalty is imposed in the criminal proceedings? Does it matter if the criminal offence charged is an offence of strict liability?

46 These, too, are not questions that fall for decision in this case. At first sight, however, if criminal charges, alleging the same conduct as is alleged in a civil proceeding, have been brought and proved, it would be a most unusual case in which it was open to a civil court to conclude that the outcome of those criminal proceedings did not take sufficient account of the need to punish the offender and deter others from like conduct. There seems to be much to be said in favour of the views reached by a majority of the Court of Appeal of New Zealand in Daniels v Thompson that for a civil court to revisit a sentence imposed in a criminal court for the purpose of deciding whether the criminal received his or her just deserts is "contrary to principle" and must "undermine the criminal process".”

19. Ms Campbell submits that there are three bases upon which exemplary damages may still be awarded notwithstanding the imposition of a criminal sanction:

1. Where there is an assertion that something other than a “substantial punishment” has been imposed on the wrongdoer.

2. Alternatively, where the conduct in question is sufficiently “unusual” (Gray v Motor Accidents Commission at [46]) as to justify the imposition of exemplary damages notwithstanding the “substantial punishment” contained in the criminal sanction imposed on the wrongdoer.

3. Where the conduct which has not been the subject of criminal charges may still result in the awarding of such damages.

20. In Cheng v Farjudi (2016) 93 NSWLR 95 at [87], Beazley P stated:

“Accordingly, the position in Australia is that exemplary damages may not be awarded where substantial criminal punishment has been imposed. However, the High Court in Gray did not preclude an award of exemplary damages where something other than substantial punishment was imposed, and in accordance with the authorities in this Court exemplary damages may be awarded in some circumstances notwithstanding that a criminal sanction has been imposed.”

21. The facts in that case were as follows. The victim of an assault commenced proceedings for damages against the assailant. A conviction had been recorded against the assailant and a bond imposed. The plaintiff sought exemplary damages on the basis of, inter alia, the assailant’s contumelious conduct at the trial. The Court found that the assailant’s conduct (which included combative behaviour at the civil damages trial) was “unusual” sufficient to justify the imposition of exemplary damages notwithstanding that “substantial punishment” had already been imposed on the assailant (at [110] - [112]; [129] and [130]).

22. As to the first of these issues, Ms Campbell submits that the penalties imposed for the first two offences are for short periods of imprisonment, and that these punishments, viewed separately from the head sentence, cannot be regarded as substantial. That argument must fail, for two reasons. The first is that sentences of imprisonment of this kind are, for the reasons explained by Beazley P in Cheng v Farjudi at [105], sufficiently “substantial”. The second is that, when determining whether the penalty is “substantial punishment”, the sentence should be viewed as a whole.

23. As to the second of these issues, there is no evidence of “unusual” conduct by the defendant at the criminal trial. His behaviour in court today could not have been more remorseful and he not only accepted all the claims against him but firmly stated he had no intention of appealing any orders.

24. As to the third of these issues, while no charges were laid in relation to the conduct of certain offences occurring when the plaintiff was five years old, they are recorded as part of the history of offending which was the subject of submissions on sentence (referring to Woodward v R [2017] NSWCCA 44 (CB 98). The defendant pleaded guilty to, and was convicted of, a series of offences over a lengthy period and the failure to charge for certain of the assaults needs to be viewed in that context.

25. Taking all of the above into account, exemplary damages should not be awarded.

Out of pocket expenses

26. No claim is made for past out of pocket expenses, which were considerable, but which appear never have been charged to the plaintiff.

27. A proposal for counselling in the future has been costed out at $15,000 and I award this sum.

Past economic loss

28. As Cavanagh J observed in Miles v Doyle (No 2) at [55], assessment of pecuniary loss may be difficult in historical sexual assault cases, as the plaintiff may have kept the assault history hidden for many years. As society has come to understand in more recent times, that has been the norm rather than the exception. Causation in such circumstance must be approached in a practical and common sense way.

29. The plaintiff is an intelligent and hardworking member of the community. She has shown enormous courage and personal strength to be able to function as a parent and employee, but the fact remains that she suffered repeated sexual assaults over a decade, from the ages of 5 to 15 years, following which she remained on her guard for another decade because the defendant (who had a key to the family home and lived in the same street) could, and did, come to the family home at any time, and she was always on her guard (and, indeed, hypervigilant).

30. Despite these handicaps, the plaintiff was able to do well enough to commence an accounting course and in the ordinary course of events could have achieved the role of an Accounts Clerk or better. Instead, she is working only 20 hours per week in menial employment for which she is paid $25 per hour.

31. Ms Campbell estimates that the difference between the employment the plaintiff could have hoped to achieve and her current role is $262 per week for 84 weeks, which is $22,008, and which results in a total of $150,000 for her working life to date.

32. I accept that the plaintiff’s ability to work has been severely impacted and I accept the calculations set out in this figure.

33. I was not addressed as to any claim for interest on past economic loss.

Future economic loss

34. As noted above, the plaintiff commenced, but was not able to finish, an accounting course. I accept that, but for these events, she could have enjoyed employment in this field up to the age of 70. Instead, she is likely to continue for some years, and perhaps the rest of her working life, in lesser positions for a lesser salary and only part-time, full-time employment being beyond her.

35. Ms Campbell has estimated future economic loss as $262 x 309.4 x 85% (the latter to allow for vicissitudes at the normal rate), which is a total of $68,903. I accept this figure but round it up to $69,000.

Summary of damages

36. The amount to be awarded is as follows:

General damages                  $200,000

Aggravated Damages                $100,000

Past Economic Loss                  $150,000

Which includes the difference between Accounts clerk role and current role $262 per week for 84 weeks = $22,008

Future Economic Loss to retirement at 70      $69,000

$262 x309.4X85% =$68,903

Future Out of pocket expenses           $15,000

Total:  $534,000

Costs and other orders

37. As this is an assessment of damages, the defendant should pay the plaintiff’s costs.

38. I was not addressed as to whether costs are sought on a basis other than the usual order, or in the form of a gross sum costs order, and I was not addressed on the subject of interest on the damages. I have made a costs order in favour of the plaintiff and granted liberty to apply.

Order:

1. Orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) directing that there be no publication of the names or addresses of either party (or any information tending to reveal the identity or address of either party) upon the grounds that:

1. The order is necessary to avoid causing undue distress or embarrassment to the plaintiff who was the victim of a crime of a sexual nature committed by the defendant when the plaintiff was a child;

2. It is otherwise necessary in the public interest for the order to be made and the public interest significantly outweighs the public interest in open justice.

3. The parties’ names are accordingly changed to SMD v JDW.

2. Judgment for the plaintiff for $534,000.

3. Defendant pay plaintiff’s costs.

4. Liberty to restore in relation to interest and costs.

5. Exhibits retained until further order.

**********

Decision last updated: 13 May 2022