Citation: Dupont v Lampion; Dupont by tutor Dupont v Lampion; Dupont by tutor Dupont v Lampion [2015] NSWDC 33
Court: District Court of New South Wales
Date: 10 February 2015
Judge: Gibson DCJ
Background
Three plaintiffs, a father and his two minor daughters, brought civil proceedings for damages against the defendant, the maternal grandfather of the children. The defendant had pleaded guilty in criminal proceedings to fifteen counts of sexual assault against the children, and was sentenced to seven years imprisonment with a four-year non-parole period. In the civil proceedings he admitted the conduct but made no admissions as to damages.
The two daughters had been sexually assaulted on multiple occasions between October and December 2010, when they were aged approximately seven and nine. The assaults occurred within an isolated, tightly controlled family community centred on a rural property where the defendant served as the chief pastor of a family church. The children were home-schooled and had little social contact outside the extended family.
The father's claim arose from the psychiatric and psychological harm he suffered upon discovering the assaults. The family's circumstances were compounded by the suicide of the defendant's own son (the children's uncle by marriage), who had been under pressure from the defendant to have the criminal charges dropped, and by the subsequent breakdown of the father's marriage.
Legal Issues
- Whether the Civil Liability Act 2002 (NSW) applied to the assessment of damages, or whether common law principles governed
- The appropriate quantum of general damages for each of the two child plaintiffs for sexual assault and its psychiatric sequelae
- Whether aggravated compensatory damages were available to the child plaintiffs, and if so, at what level
- Whether exemplary damages were available given the defendant's criminal conviction
- The father's entitlement to damages for nervous shock under s 4 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), and the appropriate quantum
- The appropriate treatment of interest on aggravated damages
Decision
The court confirmed that the Civil Liability Act 2002 (NSW) does not apply to intentional acts of sexual assault, by reason of s 3B(1) of that Act. Damages were therefore assessed according to common law principles, following State of New South Wales v Doherty [2011] NSWCA 225.
The plaintiffs abandoned their claim for exemplary damages in light of the defendant's criminal conviction for the same conduct, consistently with Gray v Motor Accidents Commission (1998) 158 ALR 485. The court proceeded to assess general damages and, in the case of the two children, aggravated compensatory damages only.
The defendant did not attend the hearing, tender evidence, or make submissions on quantum. The court accepted the father's unchallenged evidence and the medical material before it. Gibson DCJ accepted the damages figures proposed by counsel for the plaintiffs as appropriate in the circumstances, and no contrary submissions were advanced.
On the question of interest on aggravated damages, the court adopted the approach taken in Mather v Smith [2014] QCA 65, treating the date of hearing as the relevant starting date. As the judgment was delivered ex tempore, no interest was awarded on that component.
Orders Made
In relation to the father:
- Judgment for the plaintiff for $88,400
- Defendant to pay plaintiff's costs
- Matter stood over to 11 February 2015 for further orders including freezing orders
In relation to the elder daughter:
- Judgment for the plaintiff for $150,100
- Defendant to pay plaintiff's costs
- Damages directed to be paid to the NSW Trustee and Guardian for investment until the plaintiff's 18th birthday, with liberty to apply for payment of treatment expenses as and when payable
- Matter stood over to 11 February 2015 for further orders including freezing orders
In relation to the younger daughter:
- Judgment for the plaintiff for $220,500
- Defendant to pay plaintiff's costs
- Damages directed to be paid to the NSW Trustee and Guardian for investment until the plaintiff's 18th birthday, with liberty to apply for payment of treatment expenses as and when payable
- Matter stood over to 11 February 2015 for further orders including freezing orders
Key Takeaways
- Section 3B(1) of the Civil Liability Act 2002 (NSW) excludes intentional acts of sexual assault from the Act's operation entirely, so damages in such cases are assessed at common law without the Act's caps or thresholds.
- A plaintiff who has obtained a criminal conviction against the defendant for the same conduct is precluded from also claiming exemplary damages in civil proceedings, consistent with the principle against double punishment confirmed in Gray v Motor Accidents Commission.
- Aggravated compensatory damages remain available to child victims of sexual assault in civil proceedings and are distinct from exemplary damages; they reflect the harm caused by the defendant's conduct and its aggravating features.
- The District Court adopted the Queensland Court of Appeal's approach in Mather v Smith on interest for aggravated damages, treating the hearing date as the relevant starting point, which resulted in no interest award where judgment was delivered ex tempore on the same day.
- Where minor plaintiffs obtain damages awards in the District Court, the court may direct payment to the NSW Trustee and Guardian for investment until the plaintiff turns 18, with a liberty to apply for earlier release to meet treatment costs.
Legislation and Cases Referenced
Legislation:
- Civil Liability Act 2002 (NSW), s 3B(1)
- Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4
- Civil Procedure Act 2005 (NSW), ss 75-77
Cases:
- State of New South Wales v Doherty [2011] NSWCA 225
- Gray v Motor Accidents Commission (1998) 158 ALR 485
- Mather v Smith [2014] QCA 65
- Cerutti v Crestside Pty Ltd [2014] QCA 33
- Hallam v Ross (No 2) [2012] QSC 407
- M v Nesbitt [2012] NSWDC 152
- Kelly v John Fairfax Pty Ltd (1987) 8 NSWLR 131