Citation: [2018] NSWDC 223
Court: District Court of New South Wales
Date: 17 August 2018
Judge(s): Haesler SC DCJ
Background
The plaintiff was born in August 1976. Between 1989 and 1991, when he was approximately 13 to 14 years old, he was subjected to repeated sexual abuse by the defendant, an adult who was a close friend of the plaintiff's step-father. The abuse included acts of oral intercourse and attempted anal intercourse. The defendant had exploited the plaintiff's youth, immaturity, and vulnerability, including his prior experience in foster care, to maintain silence.
In 2014 the defendant was convicted in the District Court's criminal jurisdiction on nine counts of homosexual intercourse with a child under the Crimes Act 1900 and served terms of imprisonment. The plaintiff subsequently brought civil proceedings claiming damages for intentional torts arising from those same assaults.
Default judgment was entered against the defendant on 4 June 2018. The hearing before Haesler SC DCJ concerned the assessment of damages only, including a claim for aggravated damages.
Legal Issues
- How should non-economic (general) damages be assessed at common law where the Civil Liability Act 2002 is excluded by operation of section 3B(1), which removes intentional sexual assault from that Act's regime?
- Whether aggravated damages were warranted and, if so, at what level?
- Whether the defendant's argument that the plaintiff failed to mitigate his loss, by not using a prior victims' compensation payment for treatment, could be sustained?
- How to assess past and future economic loss, including future earning capacity, in light of the plaintiff's work history and psychiatric prognosis?
- Whether interest should be awarded on the non-economic loss and aggravated damages components, and on what basis?
Decision
General damages and exclusion of the Civil Liability Act
Because the claims arose from intentional acts of sexual assault, section 3B(1) of the Civil Liability Act 2002 excluded that statute's damages framework entirely. The court assessed non-economic loss at common law, where damages are "at large." Haesler SC DCJ drew on comparable District Court and Supreme Court decisions while acknowledging that direct comparisons between cases are imprecise, as each assessment turns on its individual facts. The court awarded $230,000 in general damages.
Psychiatric injury and causation
The expert evidence of Dr Smith established that the plaintiff suffers from chronic major depressive disorder, PTSD, generalised anxiety disorder, and alcohol use disorder (in remission). Dr Smith attributed the onset of these conditions directly to the defendant's abuse and opined that significant recovery was unlikely. The court accepted this evidence and found the harm was ongoing and pervasive, affecting the plaintiff's relationships, employment, and mental health over decades, including two documented suicide attempts.
Aggravated damages
The court found that the particular distress and intangible harm flowing from the defendant's conduct warranted a separate award of aggravated damages, though it was careful to avoid double-counting with the general damages award. The defendant's conduct included exploiting the plaintiff's vulnerability and using implied threats to suppress disclosure. No exemplary damages were claimed, consistently with the High Court's approach in Gray v The Motor Accident Commission, given that the defendant had already served a custodial sentence. Aggravated damages of $20,000 were awarded.
Mitigation, economic loss, and interest
The defendant argued the plaintiff had failed to mitigate his loss by not applying a prior victims' compensation payment towards treatment. The court rejected this, noting there is no legal requirement to use such a payment in any particular manner and that the plaintiff's approach to treatment had not been unreasonable given his ongoing depression. Past economic loss was assessed on documentary evidence of absences from work. Future loss of earning capacity was assessed as a buffer of $50,000, reflecting the plaintiff's recent improved work attendance, his current earnings, and the possibility of improvement with treatment, balanced against the risk that he could not find alternative employment if his current role were lost. Interest was calculated at 1% over 25 years on the general and aggravated damages components, following the approach adopted by Judge Taylor SC in Shalhoub v State of New South Wales.
Orders Made
- General damages: $230,000
- Aggravated damages: $20,000
- Interest on general and aggravated damages at 1% for 25 years: $42,000
- Past out-of-pocket expenses: $6,795
- Future out-of-pocket expenses: $54,444
- Past loss of earnings: $16,065
- Past loss of superannuation (11%): $1,767
- Future impairment of earning capacity: $50,000
- Total: $421,071
- The defendant is to pay the plaintiff's costs as agreed or assessed.
Key Takeaways
- The District Court confirmed that the Civil Liability Act 2002 has no application to intentional acts of sexual assault, meaning damages for non-economic loss are assessed at large under common law principles with no statutory cap.
- Aggravated damages remain available in civil sexual assault claims to recognise particular harms, including exploitation of a victim's vulnerability and conduct designed to suppress disclosure, provided the award does not simply duplicate the general damages figure.
- Where a defendant has already served a custodial sentence for the conduct giving rise to the civil claim, exemplary (punitive) damages are not available, consistent with the High Court's reasoning in Gray v The Motor Accident Commission (1998-1999) 196 CLR 1.
- A prior victims' support payment does not give rise to an obligation to spend that money on treatment; a defendant cannot establish a failure to mitigate simply by pointing to such a payment.
- Future economic loss may be assessed as a buffer rather than by reference to actuarial tables where the evidence on precise quantum is insufficient, with the size of the buffer calibrated to the plaintiff's recent work history, prognosis, and contingencies.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), s 3B(1)
- Crimes Act 1900 (NSW), s 78K (as it then was)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15B, 15D
- Victims Rights and Support Act 2013 (NSW), ss 34, 35, 55(2)
Cases
- Gray v The Motor Accident Commission (1998-1999) 196 CLR 1
- MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
- M v Nesbitt [2010] NSWDC 152
- XY v Featherstone [2010] NSWSC 1366
- Shalhoub v State of New South Wales [2017] NSWDC 363