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District Court 12 May 2022

SMD v JDW

[2022] NSWDC 156

Sexual offences
TORT ASSESSING DAMAGES FOR SEXUAL ASSAULT GENERAL AND AGGRAVATED DAMAGES EXEMPLARY DAMAGES NOT AWARDED PAST AND FUTURE ECONOMIC LOSS FUTURE OUT OF POCKET EXPENSES

Citation: SMD v JDW [2022] NSWDC 156
Court: District Court of New South Wales
Date: 12 May 2022
Judge: Gibson DCJ

Background

The plaintiff brought civil proceedings for damages arising from a series of sexual assaults committed against her by her brother, the defendant, when she was a child. The assaults began when she was approximately five years old and continued across a period spanning 1971 to 1978. The defendant had already been convicted of criminal offences relating to these incidents and was serving a term of imprisonment at the time of the civil assessment.

The defendant did not file a defence and did not contest any of the plaintiff's factual claims. He attended the hearing unrepresented and acknowledged his wrongdoing, expressing that he did not wish to cause further distress to the plaintiff. The proceedings were therefore conducted as a damages assessment rather than a contested hearing.

The plaintiff's evidence, including psychiatric material from Dr Jungfer, established that the prolonged abuse had profoundly affected her psychological wellbeing. Despite marrying and having children, she had been unable to complete an accounting qualification or sustain full-time employment. The revelation of the abuse also fragmented her family, adding a further layer of distress.

  • Whether the Civil Liability Act 2002 (NSW) applied to this claim, or whether damages should be assessed at common law
  • The appropriate quantum of general damages for non-economic loss
  • Whether aggravated damages were warranted, and how they should be recorded
  • Whether exemplary damages could be awarded notwithstanding the defendant's criminal conviction and imprisonment
  • The appropriate heads and amounts for past and future economic loss and future out-of-pocket expenses

Decision

General and aggravated damages

The court confirmed that section 3B(1) of the Civil Liability Act 2002 (NSW) excludes intentional acts of sexual assault from the Act's operation, meaning non-economic loss must be assessed under common law principles where such damages are at large. Gibson DCJ accepted the plaintiff's claimed sum of $200,000 for general damages, noting that the defendant had not put any aspect of the claim in issue. A further $100,000 was awarded for aggravated damages, recorded separately from general damages to reflect the distinct nature of that head of compensation. Aggravated damages are a compensatory award, recognising harm over and above the base injury, particularly where the conduct was egregious and where the victim has borne long-term shame, embarrassment, and psychiatric consequences.

Exemplary damages

The plaintiff's counsel submitted orally that exemplary damages could be awarded despite the defendant's criminal punishment, advancing three potential bases: that the punishment imposed was not "substantial," that the conduct was sufficiently unusual to warrant the award anyway, or that conduct not subject to criminal charges could still ground exemplary damages. The court declined to make such an award. Relying on Gray v Motor Accident Commission (1998) 196 CLR 1 and Cheng v Farjudi (2016) 93 NSWLR 95, the court applied the established Australian position that exemplary damages should not be awarded where a substantial criminal punishment has already been imposed. The defendant's imprisonment was found to constitute substantial punishment, and the court was not persuaded that any of the three suggested bases overcame that principle.

Economic loss

The court accepted past economic loss of $150,000, which included a calculated difference between the salary the plaintiff was able to earn in her current role and what she would have earned as an accounts clerk. Future economic loss was assessed at $69,000, based on the premise that, but for the defendant's conduct, the plaintiff could have worked in accounting until age 70. The calculation applied a discount of 15% for vicissitudes. Future out-of-pocket expenses of $15,000 were also accepted, bringing the total award to $534,000.

Orders Made

  • Suppression and non-publication orders made under section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), suppressing the names, addresses, and any identifying information of both parties, on the grounds that publication would cause undue distress or embarrassment to the plaintiff (a victim of childhood sexual offending) and that the public interest in making the order significantly outweighs the public interest in open justice
  • Parties' names changed to SMD v JDW accordingly
  • Judgment for the plaintiff in the amount of $534,000
  • Defendant to pay the plaintiff's costs
  • Liberty to restore in relation to interest and costs
  • Exhibits retained until further order

Key Takeaways

  • The District Court confirmed that the Civil Liability Act 2002 (NSW) does not apply to intentional acts of sexual assault, with the consequence that general damages for non-economic loss are assessed at large under common law principles.
  • Aggravated damages remain available in civil sexual assault claims as a compensatory award distinct from general damages, particularly where the plaintiff has suffered long-term shame, embarrassment, and psychiatric harm arising from deliberate conduct.
  • Under the principle in Gray v Motor Accident Commission (1998) 196 CLR 1, exemplary damages will not ordinarily be awarded in civil proceedings where the defendant has already received a substantial criminal punishment for the same conduct; the court here found that imprisonment satisfied that threshold.
  • Where a defendant does not contest factual allegations or challenge a schedule of damages, the court will generally assess damages in accordance with the amounts sought, provided those amounts are supported by the evidence.
  • Future economic loss calculations in cases of this kind may account for career paths the plaintiff was unable to pursue due to the psychological impact of the assault, discounted at the conventional 15% rate for vicissitudes of life.

Legislation and Cases Referenced

Legislation
- Civil Liability Act 2002 (NSW), ss 3B(1), 15B, 18(1)
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 7
- Victims' Rights and Support Act 2013 (NSW)

Cases
- AM v KW [2005] NSWSC 876
- Cheng v Farjudi (2016) 93 NSWLR 95
- Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70
- Michael Dryden v David John Jones [2018] NSWDC 223
- Miles v Doyle (No 2) [2021] NSWSC 1312
- New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57
- Wagner v Nine Network Australia Ltd [2019] QSC 284; [2020] QCA 221
- Woodward v R [2017] NSWCCA 44