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District Court 29 March 2019

P2 v D2

[2019] NSWDC 84

Sexual offences
TORTS SEXUAL ASSAULT GENERAL DAMAGES INTEREST UPON PAST GENERAL DAMAGES OUT POCKET EXPENSES

Citation: P2 v D2 [2019] NSWDC 84
Court: District Court of New South Wales
Date: 29 March 2019
Judge(s): Russell SC DCJ

Background

The plaintiff, now aged 57, was removed from her biological family at age six and placed into State care. After 26 foster placements in a single year, she was fostered from age seven to eighteen by a family that included the defendant, her foster father. Both foster parents were physically cruel to her.

The defendant sexually assaulted the plaintiff repeatedly between 1973 and 1977, when she was aged twelve to sixteen. In 2015, following a police investigation prompted by the plaintiff's statement, the defendant pleaded guilty in the District Court to five specific assaults and was sentenced to imprisonment. The plaintiff subsequently commenced civil proceedings for damages, pleading those five assaults and alleging further additional assaults during the same period.

The defendant's filed defence did not admit the pleaded assaults, despite his prior guilty plea to the identical conduct. At the hearing, counsel for the defendant sensibly abandoned that position, admitted the five assaults, and the matter proceeded as an assessment of damages only.

  • Whether, in addition to the five admitted assaults, there were further sexual assaults during the relevant period that should be taken into account in assessing damages
  • The appropriate quantum of general damages, interest on past general damages, aggravated damages, and exemplary damages
  • Whether economic loss and future loss of earning capacity were established on the evidence
  • The proper treatment of the victims support payment received by the plaintiff under the Victims Rights and Support Act 2013 (NSW), specifically whether that sum had to be deducted from the damages award pursuant to s 55 of that Act

Decision

Additional assaults
The plaintiff's oral evidence addressed only the five pleaded and admitted assaults. However, the psychological reports in evidence (admitted without limitation) recorded a history given by the plaintiff of far more extensive abuse, including acts occurring daily over multiple years. His Honour treated those recorded histories as evidence not only that such histories were given, but also as evidence of their truth. The court found that there were additional assaults beyond the five to which the defendant pleaded guilty, and took those into account in assessing damages.

General, aggravated and exemplary damages
Russell SC DCJ accepted the plaintiff entirely as a witness of truth; no contrary submission was made by the defendant's counsel. The court assessed general damages at $300,000, reflecting the profound and lasting psychological harm inflicted upon the plaintiff, including her inability to form intimate relationships, daily intrusive thoughts, and the long shadow the assaults had cast over her working and personal life. Aggravated damages of $50,000 were awarded to reflect the defendant's conduct in threatening to send the plaintiff away if she disclosed the abuse. Exemplary damages of $25,000 were also awarded, recognising the deliberate and egregious nature of the defendant's conduct toward a vulnerable child in his care.

Economic loss
The plaintiff left paid work in 2016 owing to a combination of her back injury (sustained in a workplace accident around 2000) and the psychological effects of the assaults. The court declined to make a separate award for past or future economic loss, apparently treating the two causative factors as inseparable and reflecting the plaintiff's current receipt of a disability pension and her full-time occupation caring for three foster children.

Victims support payment and s 55
The plaintiff had received a victims support payment of $30,250 from the Department of Justice under the Victims Rights and Support Act 2013 (NSW). Section 55(3) of that Act introduces a subrogation mechanism. Drawing on general principles of subrogation, the court held that the payment had to be deducted from the damages award to prevent the plaintiff from effectively recovering that sum twice. Both parties agreed this was the correct approach. The deduction was made from the sub-total of assessed damages, leaving the State free to bring its own subrogated recovery proceedings against the defendant for that amount.

Orders Made

  • Judgment for the plaintiff in the sum of $650,670
  • The defendant to pay the plaintiff's costs
  • Leave granted to the parties to approach the Associate within seven days if either party sought a different costs order

Key Takeaways

  • Psychological reports admitted into evidence without limitation can constitute proof of the truth of histories recorded in them, not merely proof that those histories were given; this enabled the District Court to find additional assaults beyond those formally pleaded and admitted.
  • A filed defence that denies conduct to which the defendant has already pleaded guilty in criminal proceedings is, as the court observed, a document that should never have been filed; Russell SC DCJ noted he would have struck it out on application.
  • Aggravated and exemplary damages remain available in civil sexual assault claims where the defendant's conduct involves deliberate threats to suppress disclosure and the exploitation of a position of trust and care over a vulnerable child.
  • Under s 55 of the Victims Rights and Support Act 2013 (NSW), a victims support payment received before judgment must be deducted from the civil damages award, consistent with subrogation principles designed to prevent double recovery; the State retains the right to pursue the defendant directly for that amount.
  • Where two distinct causative factors, one tortious and one not, contribute to a plaintiff's loss of earning capacity, the court's approach in this case illustrates the difficulty of isolating the tortious contribution, particularly where the plaintiff has moved to a non-income-generating role.

Legislation and Cases Referenced

Legislation
- Civil Procedure Act 2005 (NSW)
- Victims Rights and Support Act 2013 (NSW), s 55

Cases
- Castellain v Preston (1883) 11 QBD 380
- Dryden v Jones [2018] NSWDC 223
- Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1
- Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1
- MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657
- M v Nesbitt [2012] NSWDC 152
- New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496
- Orakpo v Manson Investments Ltd [1978] AC 95
- P v D [2018] NSWDC 277
- Planet Fisheries Pty Limited v La Rosa [1968] HCA 62; (1968) 119 CLR 118
- Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
- Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
- Whitfield v De Lauret & Co Limited [1920] HCA 75; (1920) 29 CLR 71