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District Court 10 October 2013

LT v RT

[2013] NSWDC 251

Sexual offencesAssault & violence
CIVIL TORT INTENTIONAL TRESPASS TO PERSON DELIBERATE ACTS INTENTIONAL OR WILFUL

Citation: LT v RT [2013] NSWDC 251
Court: District Court of New South Wales
Date: 10 October 2013
Judge: MJ Finnane QC DCJ

Background

The plaintiff, a woman aged 54 at the time of proceedings, brought a civil claim for damages against her father arising from serious and repeated sexual and physical abuse he inflicted on her from approximately age four or five until she was thirteen. The father had already pleaded guilty to a series of criminal charges, including carnal knowledge of a girl under the age of ten years, and was serving a sentence of imprisonment imposed earlier in 2013 by another District Court judge.

Because the defendant failed to file any defence in the civil proceedings, judgment was entered against him by default. The hearing before Finnane DCJ concerned only the assessment of damages.

The plaintiff sought general damages and aggravated general damages for the torts committed against her. She did not seek exemplary damages, as the defendant was already serving a custodial sentence and exemplary damages were therefore unavailable under the principle in Gray v The Motor Accidents Commission.

  • What quantum of general damages (including aggravated damages) was appropriate to compensate the plaintiff for the prolonged, serious sexual and physical abuse she suffered?
  • What damages were available for loss of earning capacity (past and future), loss of superannuation entitlements, and out-of-pocket expenses?
  • Whether the District Court could make an award exceeding its ordinary jurisdictional limit of $750,000, and if so, by how much.

Decision

Finnane DCJ accepted the plaintiff's evidence in full and found that the defendant had committed serious common law offences over many years, including rape, indecent assault, assault occasioning actual bodily harm, incest, and carnal knowledge of a girl under ten. His Honour described the conduct as among the worst he had encountered in thirteen years of criminal trial and sentencing work.

The court found that the abuse had caused profound and lasting harm across all aspects of the plaintiff's life. The effects included an inability to form relationships in childhood, failure to obtain her Higher School Certificate, delayed entry into teaching (with consequent loss of access to the State Superannuation Scheme), and repeated loss of promoted positions due to ongoing psychological and emotional impairment. Her adult life was also marked by significant personal tragedy, which the court considered in the broader context of her circumstances.

On general damages, the court awarded $400,000, attributing two thirds of that figure to past loss and noting that the harm caused was "scarcely capable of being redressed by an award of damages." The plaintiff was also held entitled to damages for past and future loss of earning capacity, past and future loss of superannuation benefits, and past and future out-of-pocket expenses.

On jurisdiction, the District Court's ordinary limit at the time was $750,000. Relying on Richards v Cornford and Haddaway v Robinson, the court noted that where a claim exceeds that limit and the defendant raises no objection, an award of up to 50% above the jurisdictional cap is permissible. The total award was therefore set at $1,125,000.

Orders Made

  • General damages of $400,000 awarded (two thirds attributed to the past, with interest to apply on past general damages).
  • Additional damages awarded for past and future loss of earning capacity, past and future loss of superannuation benefits, and past and future out-of-pocket expenses.
  • Total damages awarded: $1,125,000.
  • The defendant is to pay the plaintiff's costs.

Key Takeaways

  • The District Court confirmed that each individual assault constitutes a separate tort giving rise to a separate cause of action; pleading multiple assaults within a single rolled-up cause of action is technically incorrect, though the court found it did not affect the outcome in this case.
  • Where a defendant in civil proceedings has already been convicted and sentenced for the same conduct, exemplary damages are unavailable to the plaintiff: Gray v The Motor Accidents Commission (1998-1999) 196 CLR 1.
  • Under Richards v Cornford (2010) 76 NSWLR 573 and Haddaway v Robinson [2010] NSWDC 188, the District Court may award up to 50% above its ordinary jurisdictional limit where the claim value warrants it and the defendant does not object.
  • Prolonged childhood sexual and physical abuse by a parent can ground significant awards across multiple heads of damages, including general damages, aggravated damages, lost earning capacity, lost superannuation, and out-of-pocket expenses.
  • The court treated the loss of access to the State Superannuation Scheme (closed to new members in 1985) as a compensable consequence of abuse-related disruption to the plaintiff's career, given that it caused her delayed entry into the teaching profession.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including section 76 (indecent assault)

Cases
- Gray v The Motor Accidents Commission (1998-1999) 196 CLR 1
- Richards v Cornford (2010) 76 NSWLR 573
- Haddaway v Robinson & Ors [2010] NSWDC 188