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District Court 15 December 2023

Brown v Walker

[2023] NSWDC 566

Sexual offences
TORTS CHILD SEXUAL ASSAULT ASSESSMENT OF DAMAGES AGGRAVATED DAMAGES

Citation: Brown v Walker [2023] NSWDC 566
Court: District Court of New South Wales
Date: 15 December 2023
Judge: Waugh SC DCJ

Background

The plaintiff was six years old when she was sexually assaulted four times in a single day in December 1977 by the defendant, who was then 23. The defendant was charged, pleaded guilty, and was sentenced in 1978. The plaintiff's memories of the abuse were repressed and did not resurface until around 2019, after approximately six to seven years of psychotherapy.

By the time proceedings were commenced, the plaintiff was in her early fifties and had spent a decade under the care of both a psychologist and a psychiatrist. She had been hospitalised on at least six occasions for lengthy periods and was diagnosed with complex post-traumatic stress disorder and recurrent major depressive episodes. She had not worked full-time since 2018 and was unlikely to do so again.

The plaintiff commenced proceedings in the Supreme Court in May 2022, and the matter was later transferred to the District Court. The defendant's defence was struck out under rule 12.7 of the Uniform Civil Procedure Rules 2005 for failure to conduct it with due despatch, and default judgment was entered for the plaintiff with damages to be assessed. The defendant did not appear at the assessment hearing.

  • What is the appropriate quantum of general damages, including aggravated damages, for intentional child sexual assault causing long-term psychiatric harm?
  • How should damages be discounted where the plaintiff's psychiatric condition was also contributed to by other traumatic experiences, specifically childhood exposure to domestic violence?
  • What approach applies to assessing past and future economic loss where the plaintiff's work capacity has been significantly reduced?
  • What amounts are recoverable for past and future out-of-pocket medical and treatment expenses?

Decision

The court assessed total damages of $995,387. Because the plaintiff's psychiatric harm resulted not only from the defendant's conduct but also from separate childhood exposure to domestic violence, Waugh SC DCJ applied a 50% discount across most heads of damage to account for the proportion of harm not attributable to the defendant.

On general and aggravated damages, the court awarded $349,200. The plaintiff's claim for aggravated damages was supported by the nature of the abuse: the conduct was found to be intentional, arbitrary, and oppressive, in contumelious disregard of the plaintiff's rights and her bodily integrity. The court accepted that such conduct warranted an uplift beyond ordinary compensatory damages.

For past economic loss, the court assessed the plaintiff's employment history using her tax records and Woolworths employment records. It accepted that her reduced capacity to work from 2018 onward was substantially linked to her psychiatric condition and calculated an amount before applying the 50% discount, arriving at $184,559. Future economic loss was assessed at $341,628, incorporating a buffer component for general loss of earning capacity and a future superannuation component.

Past out-of-pocket expenses were assessed at $40,000 (reflecting $80,000 reduced by 50%), with the court acknowledging that while the evidentiary basis was somewhat thin, the extent of past hospitalisation and treatment made some allowance clearly appropriate. Future out-of-pocket expenses of $80,000 were allowed on the basis of Dr McDonald's psychiatric evidence about ongoing treatment needs, again reduced by 50%.

Orders Made

  • Judgment for the plaintiff in the sum of $995,387.
  • The defendant is to pay the plaintiff's costs.

Key Takeaways

  • Aggravated damages are available in civil claims for intentional child sexual assault where the defendant's conduct was arbitrary, oppressive, and demonstrated contumelious disregard for the plaintiff's rights to bodily integrity.
  • Where a plaintiff's psychiatric harm is attributable to multiple causes, including both the defendant's wrongful conduct and independent traumatic experiences such as childhood domestic violence, the court will discount damages to reflect only that portion of harm causally connected to the defendant.
  • A 50% causation discount was applied across general damages, economic loss heads, and out-of-pocket expenses on the facts of this case, reflecting the court's view that childhood domestic violence had contributed substantially to the plaintiff's psychiatric condition alongside the sexual abuse.
  • Repressed memories resurfacing many years after childhood abuse do not preclude a successful claim, particularly where contemporaneous police and criminal records corroborate the plaintiff's account.
  • In a default judgment assessment where the defendant does not appear, the court still requires proper evidentiary foundations for each head of damage and will not simply accept claimed figures without scrutiny.

Legislation and Cases Referenced

Legislation
- Civil Liability Act 2002 (NSW)
- Crimes Act 1900 (NSW) (Historical, ss 76 and 494)
- Civil Procedure Act 2005 (NSW), s 146(1)
- Uniform Civil Procedure Rules 2005 (NSW), r 12.7

Cases
- AA v PD [2022] NSWSC 1039
- Cheng v Farjudi (2016) 93 NSWLR 95
- Gray v Motor Accident Commission (1998) 196 CLR 1
- MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
- Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54
- Purkess v Crittenden (1965) 114 CLR 164
- SR v Trustees of the De La Salle Brothers [2023] NSWSC 66
- Watts v Rake (1960) 108 CLR 158
- Wilson v Peisley (1975) 7 ALR 571
- Withyman v State of NSW [2013] NSWCA 10