FILE NO: 1918/2018 DELIVERED ON: 22 December 2021 DELIVERED AT: Hobart HEARING DATES: 26, 30 July 2021 JUDGMENT OF: Blow CJ
CATCHWORDS:
Damages – Generally – Exemplary, punitive, aggravated and like damages – Aggravated damages – Assault and battery – Sexual abuse of son by father – Plaintiff's suffering exacerbated by defendant's conduct in years before trial.
Damages – Particular awards of general damages – Tasmania – Assault and battery – Plaintiff sexually abused by father when aged 10 to 16, over 40 at trial – General damages of $300,000 for non-economic harm, including aggravated damages.
Aust Dig Damages [1173]
REPRESENTATION:
Counsel: Plaintiff: M Collins QC, E A Bennett, C Mackie Defendant: No Appearance Solicitors: Plaintiff: Dobson Mitchell & Allport
Judgment Number: [2021] TASSC 64 Number of paragraphs: 128
Serial No 64/2021
File No 1918/2018
ZAB v ZWM
REASONS FOR JUDGMENT BLOW CJ
22 December 2021
The plaintiff is a son of the defendant. He has sued his father for damages for assault and battery, alleging that he was repeatedly sexually assaulted by him over about six years, commencing when he was 10 years old. In 2016 the defendant pleaded guilty to a charge of maintaining a sexual relationship with a young person under the age of 17 years – the plaintiff – and was sent to prison. This action was commenced before he was released. The defendant engaged solicitors and defended the plaintiff's claim, initially making no admissions as to the allegations of assault and battery. In late June 2021 his solicitor ceased to act for him. Thereafter he took no part in the proceedings. He was notified when the action was listed for trial, but did not appear at the trial, which proceeded ex parte pursuant to r 570(1) of the Supreme Court Rules2000.
In brief, the plaintiff's case is that the defendant unlawfully sexually assaulted him on multiple occasions during the years in question by touching his penis and testicles. He contends that there were times when the defendant caused him to obtain an erection whilst also obtaining an erection himself, times when the defendant purported to conduct medical examinations of his genital area, times when the defendant masturbated with him, times when the defendant fondled his genitals, and times when the defendant pulled down his pants. He adduced evidence that, as a result, he commenced to suffer from complex post-traumatic stress disorder and major depression, that he is likely to suffer from those conditions for the rest of his life, and that those conditions have interfered with his capacity to earn an income as a corporate lawyer. He is claiming aggravated damages in relation to both the sexual abuse and…
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.
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AGLC
ZAB v ZWM [2021] TASSC 64
Case
[2021] TASSC 64
Decision Date
CaseChat Overview and Summary
ZAB v ZWM is a case before the court where the plaintiff, ZAB, is seeking aggravated damages from the defendant, ZWM, for sexual abuse committed by ZWM against ZAB’s son. The dispute arose from a series of incidents of sexual abuse by ZWM against the son, which led to significant suffering for ZAB, exacerbated by ZWM’s conduct in the years preceding the trial. The court was tasked with determining whether ZWM’s conduct warranted the award of aggravated damages and, if so, the appropriate amount.
The legal issues the court had to resolve included whether the plaintiff’s suffering was sufficiently exacerbated by the defendant’s conduct to justify the award of aggravated damages and, if so, the quantum of such damages. The court had to consider the nature and extent of the abuse, the impact on the plaintiff, and the defendant’s conduct both during and after the abuse. It was necessary to balance the need to deter such conduct against the risk of excessive punishment.
The court found that the plaintiff’s suffering was indeed exacerbated by the defendant’s conduct both during and after the abuse. The defendant's actions before the trial, including attempts to intimidate and manipulate the plaintiff, were significant in increasing the plaintiff's distress and trauma. The court held that these actions were relevant in determining the appropriate amount of aggravated damages. After considering all the evidence, the court awarded aggravated damages to the plaintiff.