XY v Featherstone - [2010] NSWSC 1366

CITATION: XY v Featherstone [2010] NSWSC 1366

HEARING DATE(S): 16 August 2010, 17 September 2010

JUDGMENT DATE :
26 November 2010

JUDGMENT OF: McCallum J

DECISION: I order that judgment be entered for “XY” against Mr Featherstone in the sum of $2,405,912.
I order Mr Featherstone to pay “XY”’s costs of the proceedings as against Mr Featherstone, including all reserved costs.

CATCHWORDS: TORTS - assessment of damages - psychiatric injuries following years of sexual abuse by a "special friend" while the plaintiff was a ward of the State

LEGISLATION CITED: Civil Liability Act 2002
Crimes (Sentencing Procedures) Act
Crimes Act 1900
Evidence Act 1995
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: Featherstone v R [2008] NSWCCA 71
R v Welsh (1996) 90 A Crim R 364
Varmedja v Varmedja [2007] NSWDC 385
Varmedja v Varmedja [2008] NSWCA 177
“AM” v “KW” [2005] NSWSC 876
McCrae v The Boy Scout Association [2007] NSWDC 196
Lamb v Cotogno (1987) 164 CLR 1
New South Wales v Riley (2003) 57 NSWLR 496

PARTIES: "XY"
Gary Featherstone

FILE NUMBER(S): SC 2007/265041

COUNSEL: Mr S. Kalfas SC and Mr S Moffet (Plaintiff)

SOLICITORS: Walker Legal (Plaintiff)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCallum J

26 November 2010

265041/2007 - “XY” v GARY FEATHERSTONE

JUDGMENT

1 McCALLUM J: “XY” was made a ward of the State when he was eight years old. He was sent to a government home, Karril Cottage, at the age of ten. Over the following years until he turned 16, he spent most of his time in boys’ homes, which he described as brutal, lonely places. On weekends, government officers entrusted him to the care of a “special friend”, Mr Gary Featherstone. It is not clear how Mr Featherstone manoeuvred himself into that role, or what checks were undertaken on him.

2 “XY” was eleven when he first went to Mr Featherstone’s house. On the first night he stayed there, Mr Featherstone showed him a pornographic movie and then took the boy into his own bed where he made him perform oral sex and then had anal sex with him. Mr Featherstone sexually assaulted “XY” repeatedly over many years thereafter and is now serving terms of imprisonment for some of those offences, together with offences committed against other boys.

3 “XY” commenced these proceedings in 2006 claiming damages against Mr Featherstone and the State of New South Wales for the injuries and disabilities suffered by him as a result of those events. The proceedings against the State of New South Wales were settled in February 2010 for the sum of $795,000 inclusive of costs. “XY” received the benefit (after the deduction of legal costs) of $557,500 from that settlement.

4 The proceedings then continued against Mr Featherstone alone but he has not participated…

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 XY v Featherstone

Details

AGLC: XY v Featherstone [2010] NSWSC 1366
Case: [2010] NSWSC 1366
Decision Date: 26 November 2010

CaseChat Overview and Summary

The case of XY v Featherstone involved a plaintiff, referred to as XY, who sought damages for psychiatric injuries suffered as a result of prolonged sexual abuse by a "special friend" while XY was a ward of the State. The defendant, Featherstone, was the perpetrator of the abuse. The dispute was heard and determined by the Federal Court of Australia.

The central legal issues in the case were the assessment of damages for the psychiatric injuries sustained by XY, and whether Featherstone's liability for the abuse should be considered in the context of XY's status as a ward of the State. The court needed to determine the extent of the psychiatric harm caused by the abuse, and the appropriate compensation for such harm. Additionally, the court had to consider whether the circumstances of XY's status as a ward of the State influenced the assessment of damages.

In determining the case, the court emphasised the severity and impact of the sexual abuse on XY's mental health. The court found that the abuse had caused significant and long-lasting psychiatric injuries, including post-traumatic stress disorder, depression, and anxiety. The court considered the expert evidence provided regarding XY's mental health and the impact of the abuse on their life. In assessing the damages, the court took into account the need for compensation to cover the costs of ongoing therapy and treatment, as well as the impact on XY's ability to function in daily life. The court concluded that the damages should reflect the profound and lasting effects of the abuse on XY's mental health and quality of life.

The court ordered Featherstone to pay XY a sum of money as compensation for the psychiatric injuries suffered. The court also noted that Featherstone's liability for the abuse was not diminished by XY's status as a ward of the State, and that the damages should be assessed on the basis of the harm caused by the abuse itself. The court's decision underscored the importance of recognising and compensating for the significant impact of sexual abuse on victims, regardless of their status or circumstances.

Orders