Thomas (a pseudonym) v Smith (a pseudonym)
[2024] VCC 1389
•17 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
| LUCY THOMAS (A PSEUDONYM) | Plaintiff |
| v | |
| EVAN SMITH (A PSEUDONYM) | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2024 | |
DATE OF JUDGMENT: | 17 September 2024 | |
CASE MAY BE CITED AS: | Thomas (a pseudonym) v Smith (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1389 | |
REASONS FOR JUDGMENT
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Subject:PERSONAL INJURY
Catchwords: Assessment of damages – intentional tort – child sexual abuse – pecuniary loss
Legislation Cited: County Court Civil Procedure Rules 2018
Cases Cited:Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Spencer SC with Ms B King | Bowman & Knox Lawyers |
| For the Defendant | No appearance |
HER HONOUR:
1The plaintiff brings a claim for damages against the defendant for injuries caused by the intentional tort of sexual assault.
2The plaintiff claims that, between 2005 and 2014 when she was aged between four and thirteen, the defendant, her grandfather, touched her on her breasts, vagina and buttocks on a regular basis, removed her clothing, made her touch his penis and exposed his naked body to her.
3The plaintiff became aware that the defendant had also sexually assaulted her older and younger sisters. As a consequences of the sexual assault on her and her knowledge of the sexual assault of her sisters, the plaintiff has suffered a diagnosable psychiatric condition, being post-traumatic stress disorder (“PTSD”), anxiety and depression.
4The plaintiff claims general damages for pain and suffering, pecuniary loss arising from a loss of earning capacity, medical and like expenses and aggravated damages.
5The plaintiff served the Writ and Statement of Claim on the defendant on 2 September 2022. The defendant is currently serving a term of imprisonment. He did not enter an appearance or defence.
6On 29 May 2024, judgment in default of appearance was entered pursuant to Order 21 of the County Court Civil Procedure Rules 2018 (“the Rules”).
7On 31 May 2024, orders were made setting the matter down for assessment on 30 August 2024 and requiring the defendant to file any affidavits upon which he sought to rely by 23 August 2024, and to file any notice to attend for cross-examination no later than 27 August 2024.
8No affidavits or notice to attend has been filed by the defendant. The defendant was notified of the assessment hearing and a link for the defendant to attend remotely was sent to the prison where he is incarcerated. The proceeding was delayed until the prison could accommodate the video link. The proceeding was further delayed for ten minutes after the start of the video link to allow an additional opportunity for the defendant to appear. There was no appearance from the defendant.
9Pursuant to Order 40.05 of the Rules, I granted leave to the plaintiff to tender and rely on the reports of Dr Leon Turnbull, occupational and forensic psychiatrist, without requiring the author of those reports to attend for cross-examination.
10At the commencement of the hearing, I made orders that the assessment of damage proceed before me pursuant to Order 23.03(3).
Background
11The plaintiff’s first recollection of the defendant’s abuse was at her home. She recalls him entering her bedroom and encouraging her to go to sleep while he waited. The plaintiff later awoke to her hand being on his penis. The defendant told her that her parents would be “really mad if [she] told them about what had happened”.[1]
[1] Plaintiff’s affidavit, Plaintiff’s Court Book (“PCB”) 151 at paragraph [8]
12On numerous occasions the defendant forced the plaintiff to touch his penis, and touched her vagina. She says this occurred on each occasion that he visited. She estimates that this was about five or six times a year.
13The plaintiff was told to keep the abuse to herself, She was afraid the defendant would harm her if she ever spoke to anyone. She did not fully understand what was happening to her.[2]
[2] Plaintiff’s affidavit, paragraph [10] at PCB 151
14After the death of the plaintiff’s grandmother, the defendant’s wife, the plaintiff does not recall any further occasions of abuse. The plaintiff subsequently became aware that it was at this time that the defendant started abusing her younger sister. The plaintiff recalls that the defendant called the house constantly and stayed with them more frequently.[3]
[3] Plaintiff’s affidavit, paragraph [11] at PCB 151
15The plaintiff recalls her younger sister being taken to stay at the defendant’s house by herself while their father was away.
Assessment of damages
16The principles of awards of damages are well known. A plaintiff who has been injured by the tortious act of a tortfeasor is entitled to damages to put them back, as nearly as possible, to the same position as if they had not sustained the injury.
17By his failure to enter an appearance or defence, the defendant is taken to have admitted the allegations of assault and admitted the damage claimed.
General damages for pain and suffering
18In 2017, the plaintiff had a drug-induced psychosis, which she describes as “most severe”.[4] After that experience, she was unable to attend school or work. She stopped eating. She began to sleep in her mother’s bed. She eventually was referred to psychological counselling and was prescribed antidepressant medication. She found her mental health improved on medication.
[4] Plaintiff’s affidavit, paragraph [14] at PCB 152
19When her younger sister disclosed her abuse in 2018, the plaintiff initially denied that the defendant had abused her. However, when she was asked by a police officer to write what she recalled in a journal, she said the memories “came flooding back”[5] and that this was “the most overwhelming experience that [she has] ever had”.[6]
[5]Plaintiff’s affidavit, paragraph [18] at PCB 152
[6] Ibid
20She experienced panic attacks which impacted on her capacity to work. If she saw an elderly man, she had to leave work and would hyperventilate. She continues to find that being in the presence of older men affects her. She feels embarrassed by her response, but has difficulty being in public spaces, including on public transport, where there are elderly men present.
21As a result of her depression and anxiety she often has difficulty with motivation. She has difficulty with sleep and is often fatigued. She has taken melatonin, but ceased this due to particularly vivid nightmares.
22She had a further period of counselling for about six months in 2019, but did not find this very beneficial. However, she recognises the need for professional help with her mental state and intends to pursue counselling
23She continues to take antidepressant medication, which helps with her depression and “a little bit” with her anxiety. She finds it assists with her energy levels, particularly when she is feeling sluggish.
24Of particular concern to her is her significant ongoing anxiety. She has developed health-related hypochondria, which causes her to overreact to any physical sign or symptom. Through her counselling she has come to understands that as a result of feeling that she had no control over her body when she was being abused, she had “taken back a sense of self-control of her body”, but this has caused her to be hypersensitive to any sign or symptom of illness.
25I accept that sexual assault as a child can result in a feeling of lack of autonomy and control over one’s body. I accept that in remedying that sense of lack of control, one may be predisposed to hypersensitivity in one’s body, leading to anxiety at perceived symptoms of illness.
26The criminal proceedings coincided, in part, with her final year studies at school. She found the trial traumatic. She had to give evidence and was cross-examined. When the verdict was handed down, she was present at court. Due to an unfortunate turn of events, the defendant was brought through the foyer of the Court when the plaintiff was present and he began to scream her name. She says she collapsed to the ground and had to be escorted to another room. This incident traumatised her to such an extent that she was unable to attend the Court building for this proceeding and gave evidence by way of video link. She feels as if she is hearing the defendant’s voice when she is in noisy public places. Although knowing the defendant is incarcerated brings her some relief, she worries about how she will feel when he is released.
27As a result of this traumatic experience in particular, and her psychiatric injuries more generally, the plaintiff’s studies in Year 12 were affected. Although she still achieved a result that enabled her to undertake tertiary studies, she did not do as well as she had expected and hoped. She did a tertiary course that she got into, rather than a course that she would have otherwise chosen.
28I accept that a consequence of her injuries is that she did less well at school and consequently had fewer options for tertiary study available.
29Notwithstanding her injuries, the plaintiff has been able to undertake tertiary studies and also work. She is completing her studies part time while working full time and expects to complete her Bachelor of Communications in October 2024.
30I accept that the abuse the plaintiff suffered has had an impact on many aspects of her life and her success in studying and working does not diminish the significant psychological impacts she has sustained.
31No amount of financial compensation can put the plaintiff back in the position she would have been in had the abuse not occurred. Sexual abuse, particularly in childhood, has profound effects and impacts on the victim that cannot always be readily identified or quantified. However, despite its inadequacy, financial compensation is the only tool available to this court to compensate a plaintiff in a civil action of this kind.
32In particular, I note the significant anxiety the plaintiff feels, and continues to feel, in public situations, including on public transport and around elderly men. I accept that this is a feeling that she is embarrassed about, but unable to control.
33I note the impact the abuse has had on her ability to form relationships. She feels “disgusted around having sexual relations”[7] and has a feeling of being “uncomfortable around men”[8] and with physical intimacy.
[7] Transcript (“T”) T53, Lines (“L”) 29-30
[8] T54, L10
34She finds it difficult to be at her father’s house, where much of the abuse occurred. She finds it difficult to focus on herself and to apply herself intellectually.
35She is a very young woman. The abuse commenced at an early age and had a significant effect on her childhood and adolescence. Those effects will continue. However, this does not mean that the plaintiff’s life trajectory is set in stone. She has already shown that, despite the obstacle and adversity, she can make a successful life for herself.
36I am mindful that, while other cases may provide some limited assistance in determining appropriate damages, I am required to assess fair, reasonable and proportionate damages based on the circumstances of this case.
37While I have every confidence that the plaintiff will make a successful life for herself, that life will be inevitably made more difficult as a result of the psychological injuries she has sustained because of the sexual abuse perpetrated by the defendant.
38I consider an award of $460,000 is fair and reasonable compensation for general damages.
Aggravated damages
39I am satisfied that the defendant’s conduct significantly aggravated the damage she suffered. He assaulted her over an extended period of time when she was a very young child in her own home and in her own bedroom. He assaulted her when she was asleep and she woke to find herself being assaulted. She does not know whether there were times when she was assaulted, but did not wake up.
40She was assaulted when she was sharing a bed or a room with her sister. He deprived her of what should have been a place of sanctuary.
41He threatened her and caused her to fear what would happen if she told anyone else. He told her that her parents would be really mad and that she would get in trouble.
42He had no regard whatsoever for her safety or wellbeing. The fact that he was her grandfather who should have been caring and protecting her, but instead sought to gratify his own needs at the expense of her physical and mental safety, aggravates the harm she suffered. This abuse occurred at a time when the understanding of the long-term devastating impacts of childhood sexual abuse were well known. There can be no suggestion that the defendant did not understand the acts he was engaging in were illegal and would cause significant and long-term emotional and psychological distress, and physical pain, to the plaintiff.
43The fact the defendant required the plaintiff to keep the abuse secret is an open acknowledgement he knew what he was doing was harmful and wrong and would not be sanctioned.
44He chose to let the plaintiff deal with the burden of keeping that secret.
45His actions undoubtedly aggravated the harm suffered by the plaintiff.
46I consider an amount of $40,000 is appropriate compensation for aggravated damages.
Pecuniary loss
47I accept the injuries the plaintiff suffered as a result of the abuse have had impacts on her capacity to study and concentrate. She suffered a psychotic breakdown during her schooling. She describes the breakdown as “drug induced”. While the abuse may not have been directly responsible for the breakdown, on the balance of probabilities it is likely to have had increased her risk of drug taking,
48The criminal trial coincided with her final school years and had a significant impact on her school results and her tertiary pathways.
49As a result, I am satisfied that the abuse caused her to do less well at school and to have more limited university options available.
50I am satisfied her injuries continue to cause her restrictions and limitations in her work and her work capacity, including difficulties applying herself intellectually and with motivation, and being in noisy public spaces and on public transport.
51These factors are likely to impact her work capacity and her capacity for remunerative employment in real, but unquantifiable, ways.
52I accept the plaintiff is entitled to compensation, pursuant to the principles in Victorian Stevedoring Pty Ltd v Farlow.[9] The fact the loss is unquantifiable does not mean only nominal damages can be awarded.
[9] [1963] VR 594
53I consider an amount of $165,000 to be appropriate compensation for her loss of earning capacity.
54In addition, the plaintiff makes a claim for medical and like expenses in the past for medication in the amount of $1,503 and in the future for psychological treatment and medication in the amount of $16,232. I am satisfied that a reasonable allowance for past expenses is $1,500 and future medical and like expenses is $16,000.
55Finally, the plaintiff’s claims costs are fixed in the sum of $39,420. Fixing costs at this point has the advantage of facilitating recovery of a judgment debt, although it carries with it the risk the plaintiff will not be able to recover future unanticipated costs arising after the date of judgment. Nevertheless, in the circumstances of this case, I consider it is appropriate to fix costs, rather than order costs to be assessed. This is because the defendant is currently incarcerated and is elderly, and delay in recovering on the judgment is not in the interests of justice.
56It is not the role of this court to replace the role of the costs court in assessing costs. In this case, having regard to the work done, I consider fixing costs in the amount of $39,000 to be reasonable. Engaging Senior Counsel to represent the plaintiff at the trial assessment was warranted, given the particular complexity of this assessment and the high damages sought.
Orders
57Judgment will be entered for the plaintiff as follows.
58The defendant is to pay the plaintiff the amount of $721,500, which is made up of:
(a) $500,000 for pain and suffering damages, including aggravated damages;
(b) past pecuniary loss in the amount of $1,500;
(c) future pecuniary loss in amount of $181,000, made up of:
(i)$165,000 for future loss of earning capacity; and
(ii)$16,000 for future medical and like expenses
(d) costs fixed in the amount of $39,000.
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