JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2019
DATE OF JUDGMENT:	17 February 2020
CASE MAY BE CITED AS:	Waks v Cyprys & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 44

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ASSESSMENT OF DAMAGES – Common law damages - Childhood sexual abuse – Institutional abuse - Ongoing psychiatric and/or psychological consequences of abuse – General damages for pain and suffering, loss of enjoyment of life – Special damages for loss of earning capacity and medical expenses – Concurrent tortfeasors Baxter v Obacelo (2001) 205 CLR 635 – Earlier abuse by different tortfeasor - Malec v JC Hutton Pty Ltd (1900) 160 CLR 638 – Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 – Smith v Gellibrand [2013] VSCA 368 - No award for aggravated and exemplary damages against perpetrator - Gray v Motor Accidents Commission (1998) 196 CLR 1 - Carter & Anor v Walker & Anor (2010) 32 VR 1.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Burt	Mazzeo Lawyers
For the Second Defendant	Self-Represented

HER HONOUR:

Menahem Waks, or Manny as he prefers, was a thirteen year old student at Yeshivah College in 1988 when he was sexually abused by David Cyprys. Mr Cyprys was variously a caretaker, security guard, karate teacher and locksmith at the school over the time that the abuse occurred. He has subsequently been convicted and sentenced in relation to charges concerning Manny Waks and other students.

In this proceeding Mr Waks claims damages for psychiatric injury from Mr Cyprys, who is the Second Defendant, and eleven other defendants who are associated with the Yeshivah Centre and Yeshivah College.[1] Mr Waks has settled his claims against the eleven Yeshivah defendants at mediation in September 2018. Mr Cyprys did not participate in the mediation. Mr Waks has a judgment against Mr Cyprys entered in default of a defence and my task is to assess the damages to which he is entitled in accordance with that default judgment. At the time of hearing Mr Cyprys was incarcerated and participated by videolink.[2]
[1]The Third to Thirteenth Defendants who have settled with the Plaintiff are collectively described as ’the Yeshivah defendants’.
[2]As Mr Cyprys is the only participating defendant in the proceeding I have simply referred to him as the ‘defendant’ in this judgment.

For the reasons that follow, I assess the compensatory damages in the sum of $804,170 comprising:

General Damages  $ 200,000
Medical and other expenses         Past       $   37,348
Future  $   25,000

Loss of earning capacity Past & Future (including Super) $ 541,822
TOTAL $ 804,170

Assessment of Damages in default of a defence - the pleaded facts.

Mr Waks pleads that the defendant is liable to him for damages as the sexual abuse was a series of batteries. Judgment in default of a defence…

Grounds of appeal

[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.

Continue reading Waks v Cyprys

Details

AGLC: Waks v Cyprys [2020] VSC 44
Case: [2020] VSC 44
Decision Date: 17 February 2020

CaseChat Overview and Summary

The case of Waks v Cyprys involved the plaintiff, Waks, who brought an action against Cyprys, a former employee of a religious institution, for the sexual abuse Waks suffered as a child. The dispute centred on the quantum of damages awarded to Waks for the ongoing psychiatric and psychological consequences of the abuse. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were the assessment of damages for the pain and suffering, loss of enjoyment of life, loss of earning capacity, and medical expenses incurred by Waks due to the abuse. The court had to consider the principles of concurrent liability, particularly in light of earlier abuse by a different tortfeasor, and whether to award aggravated and exemplary damages against Cyprys. The court examined relevant cases such as Baxter v Obacelo, Malec v JC Hutton Pty Ltd, Smith v Gellibrand, and Gray v Motor Accidents Commission to determine the appropriate quantum of damages.

The court concluded that the damages should reflect the unique circumstances of Waks' case, including the ongoing impact of the abuse. It found that the earlier abuse by a different tortfeasor did not absolve Cyprys of responsibility, and thus, the principle of concurrent liability applied. The court awarded Waks substantial general damages for pain and suffering and loss of enjoyment of life, as well as special damages for loss of earning capacity and medical expenses. However, the court declined to award aggravated and exemplary damages against Cyprys, consistent with the principles established in Gray v Motor Accidents Commission and Carter & Anor v Walker & Anor.

The court ordered Cyprys to pay Waks the assessed damages, which included a lump sum for general damages and a structured settlement for special damages, reflecting the ongoing nature of Waks' injuries and the impact on his life. The court also noted that the assessment of damages was final and not subject to appeal.

Orders