Citation: P v D [2018] NSWDC 277
Court: District Court of New South Wales
Date: 4 October 2018
Judge: Russell SC DCJ
Background
The plaintiff, a man born in 1960, brought a common law damages claim against the defendant for indecent assaults committed against him as a child. The assaults occurred between 1972 and 1975, when the plaintiff was aged approximately 11 to 14. The defendant, an adult at the time, was connected to the plaintiff through an interdenominational youth organisation and a shared interest in mini bikes. A non-publication order was made and the parties were referred to by pseudonyms throughout the proceedings.
The defendant had already pleaded guilty in the District Court to three counts of committing an act of indecency on the plaintiff, based on an agreed statement of facts. The civil proceedings therefore focused primarily on the nature and timing of the abuse, its consequences for the plaintiff, and the appropriate quantum of damages.
A complicating factual backdrop was that the plaintiff had also been the victim of serious and prolonged sexual abuse by a high school teacher during the same general period. That abuse was unrelated to the defendant but was directly relevant to causation and damages.
Legal Issues
- When did the defendant's abuse occur, and did it pre-date or coincide with the teacher's abuse?
- What was the full extent of the defendant's assaults?
- What were the psychological and practical consequences of the defendant's abuse for the plaintiff?
- What quantum of damages should be awarded under the various heads of damage?
- What was the effect of prior victims compensation payments made by the defendant on the damages assessment?
- How should costs be allocated following a late amendment to the Statement of Claim?
Decision
Liability and timing. The defendant admitted liability through his guilty pleas. The central factual dispute was whether the defendant's abuse pre-dated or coincided with the teacher's abuse. The court found that the defendant's assaults occurred across the broader period from 1972 to 1975, which overlapped with the teacher's offending. The original Statement of Claim had limited the period to 1972 to 1973; an amendment was permitted during the hearing to extend it to 31 December 1975.
Causation and psychological impact. The court accepted the evidence of the only expert witness, psychiatrist Dr Parmegiani, that the plaintiff's memory had been affected by the sexual abuse itself, subsequent drug and alcohol misuse, and prescribed medication for depression. Dr Parmegiani's opinion was that the defendant's abuse caused the plaintiff to develop a chronic trauma syndrome, and that this syndrome made him more vulnerable to the subsequent abuse by the teacher. The teacher's offending then perpetuated rather than replaced the harm caused by the defendant.
Damages. Because the cause of action was an intentional tort, the Civil Liability Act 2002 did not apply and the claim was assessed at common law. The court awarded general damages of $120,000, with interest on past general damages of $79,200. Past economic loss was assessed at $150,000 and future loss of earning capacity at $100,000, despite the absence of specific earnings rate evidence. Past and future out-of-pocket expenses were also allowed. The total before any deductions was $480,742.04.
Victims compensation offset. The defendant had previously paid $8,000 in victims compensation to the plaintiff under the Victims Rights and Support Act 2013 (NSW). The court assessed damages without reference to that payment and then reduced the judgment sum by $8,000 to reflect it, consistent with the approach required under that Act. The final judgment was $472,742.04.
Costs of the amendment. The late amendment to the Statement of Claim resulted in some additional defence preparation work. The court found, however, that most of the relevant material would have been required regardless of the amendment. The costs order was largely in the plaintiff's favour, with the limited exception that the plaintiff was ordered to pay the defendant's costs of filing the Amended Defence.
Orders Made
- Judgment for the plaintiff against the defendant for $472,742.04.
- The defendant to pay the plaintiff's costs, except that the plaintiff is to pay the defendant's costs of the Amended Defence filed on 26 September 2018.
- Leave granted to the parties to approach the judge's Associate within 7 days if any different costs order is sought.
Key Takeaways
- Claims in tort arising from intentional acts of sexual assault fall outside the Civil Liability Act 2002, meaning damages are assessed at common law without the Act's caps and limitations.
- Where a plaintiff has suffered compounding harm from multiple perpetrators, psychiatric evidence can support a finding that earlier abuse rendered the plaintiff more vulnerable to subsequent abuse, which affects how causation is analysed across the overall injury.
- The District Court held that memory impairment caused by the abuse itself, substance misuse, and medication does not necessarily defeat a plaintiff's claim; rather, it is a factor the court takes into account when weighing the evidence more than four decades after the events.
- Under the Victims Rights and Support Act 2013 (NSW), damages are assessed independently of prior victims compensation payments, with the payment then deducted from the final judgment sum rather than being incorporated into the assessment.
- A late amendment to a Statement of Claim does not automatically result in a broad adverse costs order; the court examines whether the preparation work undertaken before the amendment was genuinely wasted or would have been required in any event.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW)
- Victims Rights and Support Act 2013 (NSW), ss 55, 74 and 102
- Court Suppression and Non-Publication Orders Act 2010 (NSW)
Cases
- State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
- Upadhyaya v R [2017] NSWCCA 162