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3
District Court 7 June 2012

M v Nesbitt

[2012] NSWDC 152

Sexual offences
DAMAGES FOR SEXUAL ASSAULT AGGRAVATED DAMAGES EXEMPLARY DAMAGES

Citation: M v Nesbitt [2012] NSWDC 152
Court: District Court of New South Wales
Date: 7 June 2012
Judge: Murrell SC DCJ

Background

The plaintiff, now aged 50, was sexually assaulted as a 14 to 15-year-old boarding student at Knox Grammar School during the mid-1970s. The defendant was a teacher and boarding master at the school who had cultivated a position of trust with the plaintiff, a vulnerable boy from a disrupted family background who came to regard the defendant as a father figure.

The assaults included indecent conduct and, on one occasion, sexual intercourse. The plaintiff eventually ran away from the school and, while being pursued, ran in front of a train, resulting in his suspension. He left school after Year 10.

The defendant was not present at the assessment hearing. Default judgment had been entered after substituted service was effected via the defendant's email address, and the plaintiff's solicitors separately notified the defendant of the assessment hearing by the same means. The Court was asked to assess compensatory, aggravated, and exemplary damages.

  • Whether the Civil Liability Act 2002 (NSW) applies to intentional acts of sexual assault, and on what basis non-economic loss should be assessed
  • The appropriate quantum of damages for non-economic loss, given the severity and duration of the plaintiff's psychological condition
  • Whether past and future economic loss had been sufficiently established to warrant the amounts claimed
  • Whether aggravated damages were available for the intangible harms resulting from the abuse of trust and indignity suffered
  • Whether exemplary damages were warranted in addition to compensatory damages, and if so in what amount

Decision

Section 3B(1) of the Civil Liability Act 2002 excludes the Act's operation in respect of intentional acts of sexual assault. Accordingly, the Court assessed non-economic loss according to common law principles, referring to State of New South Wales v Doherty and Gregory v State of New South Wales for contextual guidance on appropriate award levels for post-traumatic stress disorder.

The Court found the plaintiff suffered from moderately severe PTSD with mixed anxiety and depression, caused by the assaults, which had persisted for approximately 35 years. The condition was described as chronic and likely to affect the plaintiff for the rest of his life. The associated symptoms had markedly impaired the plaintiff's ability to function across all aspects of life, warranting a very substantial award for non-economic loss. The Court awarded $250,000 for non-economic loss, together with 35 years of interest calculated at 1.5 per cent.

On economic loss, the Court accepted that the plaintiff's psychological condition had significantly impaired his earning capacity, preventing him from pursuing further education and qualifications despite being of average to above-average ability. The past economic loss claim of $100,000 was described as modest at less than $4,000 per year since leaving school, and was allowed in full. A future economic loss buffer of $100,000 was also allowed, reflecting the plaintiff's remaining 15-year working life and the ongoing limitations caused by his psychological condition.

The Court awarded aggravated damages of $25,000, acknowledging the distinct harms of betrayal, abuse of trust, and indignity arising from the defendant's conduct, even though those harms overlapped to some degree with the psychological harm compensated elsewhere. The Court also awarded exemplary damages of $50,000, applying the principles from Lamb v Cotogno and State of NSW v Zreika, to punish the defendant, deter similar conduct generally, and mark the Court's abhorrence of the defendant's deliberate and disgraceful actions.

Orders Made

  • Non-economic loss: $250,000
  • Interest on past non-economic loss (1.5% x 35 years): $131,250
  • Past economic loss: $100,000
  • Future economic loss: $100,000
  • Past out-of-pocket expenses: $13,082
  • Future out-of-pocket expenses: $9,900
  • Aggravated damages: $25,000
  • Exemplary damages: $50,000
  • Total: $679,232
  • The defendant is to pay the plaintiff's costs

Key Takeaways

  • Under s 3B(1) of the Civil Liability Act 2002, intentional acts of sexual assault fall outside the Act entirely, and non-economic loss in such cases must be assessed according to common law principles rather than the statutory caps or thresholds the Act otherwise imposes.
  • Aggravated damages may be awarded for intangible harms such as betrayal of trust and indignity even where there is some conceptual overlap with the psychological harm already compensated through the non-economic loss award, provided the court identifies sufficiently distinct harm.
  • A substantial award of exemplary damages remains available alongside a full compensatory award where the severity of the wrongdoing independently warrants punishment and expression of the court's condemnation, applying Lamb v Cotogno and State of NSW v Zreika.
  • The District Court treated a modest lump-sum past economic loss claim as appropriate where the plaintiff's impaired earning capacity, disrupted employment history, and foreclosed educational opportunities were attributable to the defendant's conduct over many decades.
  • Substituted service by email under r 10.14 of the Uniform Civil Procedure Rules 2005 was available and sufficient, with the Court noting that the rules did not appear to require notification of the defendant for the assessment hearing itself.

Legislation and Cases Referenced

Legislation
- Civil Liability Act 2002 (NSW), s 3B(1)
- Uniform Civil Procedure Rules 2005 (NSW), rr 10.14, 42.1

Cases
- State of New South Wales v Doherty [2011] NSWCA 225
- Gregory v State of New South Wales [2009] NSWSC 559
- Lamb v Cotogno [1987] HCA 47
- State of NSW v Zreika [2012] NSWCA 37